United States Court of Appeals

Fifth Circuit

FILED

July 24, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20344

No. 06-20089

Summary Calendar

CAREY BERNARD CALDWELL, also known as Bernard Talib Din Hasan,

Petitioner-Appellant,

versus

THE STATE OF TEXAS,

Respondent-Appellee,

*****************************************************************

CAREY BERNARD CALDWELL, also known as Bernard Talib Din Hasan,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

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Appeals from the United States District Court

for the Southern District of Texas

No. 4:05-CV-643

No. 4:05-CV-2529

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Nos. 05-20344 and 06-20089

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* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Carey Caldwell was convicted by a jury of aggregate theft by

deception and sentenced to a 55-year term. He seeks certificates

of appealability (“COA’s”) to appeal the dismissals of two actions

that were considered as 28 U.S.C. § 2254 petitions by the district

court. We have consolidated these matters for appellate review.

See FED. R. APP. P. 3(b)(2). 

To obtain a COA, Caldwell must make a substantial showing of

the denial of a constitutional right. § 2253(c)(2). Such a showing requires that he “demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Where the district court’s denial of federal habeas relief is based

on procedural grounds rather than the underlying constitutional

claims, “a COA should issue when the prisoner shows, at least, that

jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Id.
Nos. 05-20344 and 06-20089

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No. 05-20344

Caldwell argues in No. 05-20344 that the district court erred

by treating his filing as a federal habeas petition and dismissing

it on the merits. He contends that the action did not seek relief

from his conviction or his sentence. 

Caldwell’s district court filings complained that he had been

denied a copy of his state trial records. He did not ask for any

relief from his sentence, nor did he ask that the federal court

order him released from confinement or modify, in any respect, the

conditions of his confinement. Accordingly, his action should have

been treated as a 42 U.S.C. § 1983 action seeking a copy of his

state trial records. See Rhueark v. Shaw, 547 F.2d 1257, 1258 (5th

Cir. 1977). The motion for a COA is granted. See Slack, 529 U.S.

at 484. The judgment is vacated, and the matter is remanded for

further proceedings. See Rhueark, 547 F.2d at 1258. 

No. 06-20089

Caldwell contends in No. 06-20089 that the district court

erred by dismissing his § 2254 petition without prejudice. Caldwell does not contest the district court’s determination that his

was a mixed petition because it contained both exhausted and unexhausted claims. He contends, however, that the decision to dismiss the § 2254 petition rather than to hold it in abeyance was an

abuse of discretion, given that his petition will likely be time-
Nos. 05-20344 and 06-20089

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barred under § 2244(d) if he is required to refile after exhausting

state remedies.

Caldwell has failed to show that reasonable jurists would find

debatable the dismissal of his § 2254 petition in No. 06-20089 as

a mixed petition. See Slack, 529 U.S. at 484; see also Rhines v.

Weber, 544 U.S. 269, 278-79 (2005). Accordingly, The application

for a COA in No. 06-20089 is DENIED.

NO. 05-20344: COA GRANTED; JUDGMENT VACATED; REMANDED FOR

FURTHER PROCEEDINGS. 

NO. 06-20089: COA DENIED.