Dietrich v. Vannoy

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-30341

BRIAN DIETRICH,

Petitioner-Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:17-CV-637

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:
*

Brian Dietrich, Louisiana prisoner # 125055, was convicted by a jury of
second degree murder and sentenced in 1988 to life imprisonment. He now
moves for a certificate of appealability (COA) following the district court’s
denial of his 28 U.S.C. § 2254 petition as procedurally defaulted.
To obtain a COA, a § 2254 petitioner must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here,
the district court’s denial of federal habeas relief is based on procedural

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 5, 2020

Lyle W. Cayce
Clerk
Case: 19-30341 Document: 00515404618 Page: 1 Date Filed: 05/05/2020

No. 19-30341
2
grounds, this court will issue a COA “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Dietrich fails to make the requisite showing for issuance of a COA with
respect to the district court’s denial of his petition on procedural grounds. See
Slack, 529 U.S. at 484. His motion for a COA is therefore denied. To the extent
that he requests a COA regarding the district court’s denial of an evidentiary
hearing, we construe his motion as a direct appeal of that issue and affirm. See
Norman v. Stephens, 817 F.3d 226, 234-35 (5th Cir. 2016).
COA DENIED; AFFIRMED.
Case: 19-30341 Document: 00515404618 Page: 2 Date Filed: 05/05/2020