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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 30, 2004
FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III
Clerk
No. 04-10066
Summary Calendar

BRUCE WAYNE HOUSER,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, BARKSDALE and PRADO, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Bruce Wayne Houser, Texas prisoner # 460890, moves for a
certificate of appealability (COA) to appeal the dismissal of his
28 U.S.C. § 2254 petition for failure to exhaust administrative
remedies and as procedurally barred. In that petition, Houser
alleged due process violations in connection with prison
disciplinary proceeding # 20020003898. Houser has demonstrated
that reasonable jurists could debate whether the district court was
correct in its procedural ruling. See Slack v. McDaniel, 529 U.S.
473, 484, 120 S. Ct. 1595, 1603-04 (2000). However, he fails to
establish that reasonable jurists could debate whether he has

claimed a valid deprivation of his constitutional rights. See id.
COA IS DENIED.
The district court found that Houser failed to exhaust
his state remedies because he had not filed his Step 1 grievance in
a timely manner and, further, that he had failed to file a Step 2
grievance. Both of these findings are rendered questionable by the
record, which indicates that Houser's Step 1 grievance was received
on the first working day beyond the fifteen-day period allotted for
filing grievances and, per the Offender Grievance Operations
Manual, was therefore timely. Also, contrary to the district
court's finding, the record contains a copy of Houser's Step 2
grievance and the response issued by prison authorities. The
district court's determination of failure to exhaust is at best
suspect.
However, for a COA to issue, Houser must prove not only
that reasonable jurists could debate whether the district court was
correct in its procedural ruling, but also that reasonable jurists
could find it debatable that the petition states a valid claim of
the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack,
529 at 484, 120 S. Ct. at 1603-04. This coequal portion of the
appealability test "gives meaning to Congress' requirement that a
prisoner demonstrate substantial underlying claims." Slack, id.
Accordingly, we must consider whether "reasonable jurists would
find the district court's assessment of the constitutional claims
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debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338, 123
S. Ct. 1029, 1040 (2003).
Performing the merits-based portion of the COA inquiry in
this context does not necessarily work in the same way as it would
if the district court had passed on the merits of Houser's
petition. Where a district court has dismissed a habeas petition
on procedural grounds, it may or may not have received briefing
from the parties or had access to the underlying state records
pertinent to the merits. Perhaps recognizing this possibility, the
Supreme Court counseled in Slack that the appellate court may
resolve a COA on either the procedural or merits basis, depending
on which issue's "answer is more apparent from the record and
arguments." Slack, id. Thus, while a COA may be denied where the
appellate court finds the procedural issue "debatable" but the
petitioner's substantive claims "meritless" (as defined by
Miller-El), the latter part of the assessment cannot fairly be made
without adequate record support.
The following approach seems best to articulate what
Slack had in mind: Assume that petitioner has stated a "debatable"
issue concerning the correctness of the district court's procedural
denial of habeas relief. Then, if the district court pleadings,
the record, and the COA application demonstrate that reasonable
jurists could debate whether the petitioner has made a valid claim
of a constitutional deprivation, a COA will issue. If those same
materials make it clear that reasonable jurists could not debate
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whether the petitioner has made a valid claim of a constitutional
deprivation, the COA will be denied. See Hall v. Cain, 216 F.3d
518, 521 (5th Cir. 2000). If those materials are unclear or
incomplete, then COA should be granted, and the appellate panel, if
it decides the procedural issue favorably to the petitioner, may
have to remand the case for further proceedings.
Here, looking to Houser's application for a COA, his
original petition, the district court's opinion, the record, and
the briefs filed in the district court on behalf of Dretke, and
finding all ambiguities in Houser's favor, it is clear that no
reasonable jurist could debate that Houser fails to state a
constitutional deprivation for which habeas relief is warranted.
In Wolff v. McDonnell, the Supreme Court held that
prisoners in good time credit revocation proceedings are protected
by the due process clause. 418 U.S. 539, 558, 94 S. Ct. 2963, 2976
(1974). Namely, prison officials must meet three due process
requirements: (1) provide advance written notice of at least
twenty-four hours to the prisoner; (2) issue a written statement of
the factfinders as to evidence relied upon and their reasons for
action; and (3) offer the prisoner an opportunity to call witnesses
and present documentary evidence. Id. at 563-68, 94 S. Ct. at
2978-80. This third requirement is limited: confrontation and
cross-examination of witnesses is not constitutionally required.
Most importantly to this case, prison officials may, in their
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discretion, limit the number of witnesses called without offering
an explanation to the prisoner. Id.
Houser does not dispute that he received twenty-four
hours advance notice of the hearing or that there was evidence in
support of the factfinders' decision. Therefore, his only due
process claim is under the third McDonnell requirement. Houser did
not offer any documentary evidence at the hearing. He also failed
to offer the names of the witnesses he proposed to call at the
hearing. Even if he had done so, prison officials were not
required to permit the testimony or offer reasons for prohibiting
the testimony. See id. Houser now identifies the other prisoners
whose affidavits he claims he wanted to introduce, but he never
presented those affidavits to the prison officials at the hearing.
His lone constitutional claim, therefore, is that his witnesses
were not permitted to testify. No reasonable jurist could find
debatable the absence of a constitutional claim on these facts.
For these reasons, Houser's request for a COA is DENIED.
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