Tones v. Quarterman

Full title: Royry Glenn TONES, Petitioner-Appellant, v. Nathaniel QUARTERMAN…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jul 23, 2007

235 F. App'x 225 (5th Cir. 2007)

Opinion

No. 06-51401, Summary Calendar.

July 23, 2007.

Ronry Glenn Tones, Beeville, TX, pro se.

Appeal from the United States District Court for the Western District of Texas, USDC No. 5:06-CV-683.

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Royry Glenn Tones, Texas prisoner # 1237607, was convicted by a jury of two counts of aggravated robbery and was sentenced to 75 years in prison. He attempted to file a 28 U.S.C. § 2254 petition challenging this conviction, but the district court dismissed his petition without prejudice pursuant to FED.R.CIV.P. 41(b) for failing to comply with a court order to pay the filing fee or request leave to proceed in forma pauperis. Tones now seeks a certificate of appealability (COA) to challenge this dismissal.

Because a new petition filed by Tones would be barred by the limitations period of 28 U.S.C. § 2244(d)(1), the district court's dismissal without prejudice operates as a dismissal with prejudice. See Duncan v. Walker, 533 U.S. 167, 180, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); Gray v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981). In his notice of appeal, and again before this court, Tones asserts that he submitted a timely request for withdrawal of his funds from his prison account and that this request was mailed in a timely manner. In light of this, there is no "clear record of delay or contumacious conduct" by Tones. See Gray, 634 F.2d at 227 (internal quotation marks omitted).

Consequently, reasonable jurists would find it debatable that the district court erred in dismissing Tones's petition on procedural grounds. See Slack v. McDaniel 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). COA is therefore GRANTED on the question whether Tones attempted to comply in a timely manner with the district court's order for payment. This case is REMANDED for consideration of this issue in the first instance by the district court and for review of the prison records or an evidentiary hearing, if necessary. Tones's motion for leave to proceed in forma pauperis (IFP) on appeal is likewise GRANTED.