Jessy Carlos San Miguel v. Gary Ljohnson, Director, Texas Department of Criminal Justice, Institutional Division

* 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that this opinion should not be published and is not precedent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
FOR THE FIFTH CIRCUIT
_____________________
No. 99-10672
_____________________
JESSY CARLOS SAN MIGUEL
Petitioner - Appellant
v.
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CV-959
_________________________________________________________________
February 2, 2000
Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Jessy Carlos San Miguel appeals the district court’s denial
of his petition for a writ of habeas corpus, arguing that the
court correctly decided San Miguel had a right to proceed pro se
on appeal, but erred in concluding that he had waived that right.
Subsequent to his filing this appeal, the Supreme Court held that
the United States Constitution does not require states to
recognize a right to appellate self-representation. See Martinez

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v. Court of Appeal of California, No. 98-7809, 2000 WL 16311
(U.S. Cal. Jan. 12, 2000). San Miguel, through counsel, has
stated that this ruling disposes of his appeal.
San Miguel now seeks leave to file an application for a
Certificate of Appealability (“COA”) from this court with respect
to another claim included in his federal petition for habeas
relief. That claim raises the issue of whether the State
violated San Miguel’s due process rights by not providing him
alleged exculpatory and material information as required under
Brady v. Maryland, 373 U.S. 83 (1963). In the application for a
COA from the district court, San Miguel raised only his self-
representation claim. The district court granted a COA on the
only issue before it, and thus it did not rule on whether a COA
was warranted on the Brady claim. Because the district court has
not ruled on this issue, we must deny San Miguel’s request. See
Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998)
(“Compliance with the COA requirement of 28 U.S.C. § 2253(c) is
jurisdictional, and the lack of a ruling on a COA in the district
court causes this court to be without jurisdiction to consider
the appeal.”).
For the foregoing reasons, we AFFIRM the district court’s
denial of San Miguel’s petition, and DENY his request for leave
to file an application for a COA from this court.

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