IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40822

Summary Calendar

MARCUS FRANK KELLER,

Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:14-CV-180

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Marcus Frank Keller, Texas prisoner # 1473240, pleaded guilty in state 

court to aggravated robbery. The trial court deferred adjudication of guilt and 

placed Keller on community supervision. However, on the State’s motion, the 

trial court subsequently revoked Keller’s community supervision, found him 

guilty of aggravated robbery, and sentenced him to 77 years of confinement. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 15, 2018

Lyle W. Cayce

Clerk

 Case: 16-40822 Document: 00514349469 Page: 1 Date Filed: 02/15/2018
No. 16-40822

2

Keller attacked the state court’s adjudication in a 28 U.S.C. § 2254 

petition, which the district court dismissed, without prejudice, for want of 

prosecution under Federal Rule of Civil Procedure 41(b). This court granted a 

certificate of appealability (COA) on the issue whether the § 2254 petition was 

properly dismissed.

As an initial matter, Keller’s pro se appellate brief focuses on several 

claims for habeas relief and fails to address the district court’s procedural 

dismissal of his petition or the issue on which COA was granted. We could 

therefore, consider the relevant issue abandoned because it is not briefed. See 

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). However, “[t]he issues-notbriefed-are-waived rule is a prudential construct that requires the exercise of 

discretion.” United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001). Here, 

in his objections to the magistrate judge’s report, as well as in his COA brief to 

this court, Keller questioned the dismissal of his § 2254 petition for failure to 

prosecute. Furthermore, as discussed below, given that the district court’s 

dismissal effectively operates as a dismissal with prejudice, it is clear from the 

record that the district court erred in dismissing Keller’s § 2254 petition. In 

view of the foregoing, we exercise our discretion to consider the propriety of the 

district court’s dismissal. See id. at 443-44.

A district court may sua sponte dismiss an action for failure to prosecute 

or to comply with any order. FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 

835 F.2d 1126, 1127 (5th Cir. 1988). We review a district court’s sua sponte 

dismissal under Rule 41(b) for an abuse of discretion. Coleman v. Sweetin, 745 

F.3d 756, 766 (5th Cir. 2014). A heightened standard of review applies, 

however, where a district court’s dismissal is with prejudice or if it is without 

prejudice and “the applicable statute of limitations probably bars further 

litigation.” Gray v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981); 

 Case: 16-40822 Document: 00514349469 Page: 2 Date Filed: 02/15/2018
No. 16-40822

3

see also Coleman, 745 F.3d at 766. “We review such dismissals as we would 

dismissals with prejudice.” Coleman, 745 F.3d at 766. Here, because Keller’s 

§ 2254 petition was pending in the district court for over two years prior to its 

dismissal, further habeas litigation would probably be barred by the applicable 

one-year limitations period imposed by 28 U.S.C. § 2244(d).

A Rule 41(b) dismissal of an action with prejudice is a severe sanction, 

to be used only when the conduct in question “has threatened the integrity of 

the judicial process.” Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982). 

Such a dismissal is improper unless the case history evidences both “(1) a clear 

record of delay or contumacious conduct by the plaintiff, and (2) that a lesser 

sanction would not better serve the best interests of justice.” McNeal 

v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988). 

While the district court determined that Keller’s failure to inform it of 

his transfer to the Montford Unit warranted dismissal, the record does not 

reflect that Keller had a history of purposeful delay or contumacious conduct. 

See id. The record also does not reflect that the district court considered a 

lesser sanction. See id.

Accordingly, the judgment of the district court is VACATED, and the 

case is REMANDED for further proceedings. We express no opinion on the 

merits of Keller’s underlying habeas petition. Keller’s motions for a new trial 

and to arrest the judgment are DENIED.

 Case: 16-40822 Document: 00514349469 Page: 3 Date Filed: 02/15/2018