Cole v. Cockrell

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40328
Summary Calendar
DEVIN PAUL COLE,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CV-355
- - - - - - - - - -
December 19, 2001
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Devin Paul Cole, Texas prisoner #582965, has requested a
certificate of appealability (“COA”) in order to appeal the
dismissal of his federal habeas corpus application filed pursuant
to 28 U.S.C. § 2254. He has made a substantial showing of the
denial of a constitutional right regarding whether the lack of a
separate hearing prior to the revocation of his parole in
September 1999 violated his federal due process rights. See
Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972); see also 28
U.S.C. § 2253(c)(2).

-- 1 of 2 --

No. 01-40328
-2-
As Cole had filed a previous federal habeas corpus
application challenging his May 1999 revocation hearing, the
district court dismissed his instant constitutional claims as
repetitive. However, Cole’s instant habeas corpus application
challenged his September 1999 revocation. Accordingly, jurists
of reason would find it debatable whether the district court’s
dismissal of his constitutional claims as repetitive was correct.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The motion for
COA is GRANTED, the district court’s judgment is VACATED, and
this case is REMANDED to the district court for consideration of
Cole’s claims pertaining to his September 1999 revocation.
Cole’s motion for appointment of counsel to argue his COA motion
is DENIED AS UNNECESSARY.
COA GRANTED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
JUDGMENT VACATED; REMANDED.

-- 2 of 2 --