Smith v. Dretke

* 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this opinion should not be published and is not precedent except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
F I L E D
August 31, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20258
Summary Calendar
TERRO SMITH,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(04-CV-372)
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Terro Smith (Smith), Texas prisoner # 875683, seeks a
certificate of appealability (COA) to appeal the district court’s
dismissal of his 28 U.S.C. § 2254 petition as time-barred. Smith
filed the petition to challenge his 18-year sentence for
aggravated sexual assault of a child. Smith argues that it was
error for the district court to sua sponte dismiss his petition

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O R D E R
No. 04-20258
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as time-barred, without giving him an opportunity to present
argument opposing dismissal.
In order to obtain a COA, Smith must show that jurists of
reason would find it debatable whether his petition states a
valid claim of the denial of a constitutional right and whether
the district court was correct in its procedural ruling. Slack
v. McDaniel, 529 U.S. 473, 484 (2000). Smith has satisfied this
burden.
Accordingly, IT IS ORDERED that COA be granted on Smith’s
claim that he is entitled to equitable tolling due to mental
incompetency, VACATE the district court’s denial of 28 U.S.C.
§ 2254 relief, and REMAND to the district court for further
proceedings. See Dickinson v. Wainwright, 626 F.2d 1184, 1186
(5th Cir. 1980). COA is denied as to any remaining issues.
COA GRANTED IN PART, DENIED IN PART; VACATED AND REMANDED.

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