Tepp v. Quarterman

* 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opinion should not be published and is not precedent except under the limited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
May 16, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10806
Summary Calendar
STEVE G. TEPP,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
No. 4:06-CV-284
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Before DAVIS, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
Steve Tepp, a Texas prisoner, filed a 28 U.S.C. § 2254 habeas
corpus petition to challenge his conviction and sentence. The dis-
trict court dismissed for want of prosecution. Tepp seeks a cer-
tificate of appealability (“COA”) to appeal the dismissal.

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No. 06-10806
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To obtain a COA, Tepp must show “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).
The record does not reflect that Tepp engaged in delay or contuma-
cious conduct. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir.
1996); Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 n.6 (5th Cir.
1992). Consequently, he has established that reasonable jurists
would debate whether the district court correctly dismissed his
petition for want of prosecution. See Long, 77 F.3d at 879-80;
Berry, 975 F.2d at 1191 n.6. Based on the materials of record, it
is impossible to determine whether reasonable jurists would debate
whether Tepp presents valid claims of a constitutional deprivation.
See Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
Consequently, the motion for a COA is GRANTED, the judgment is
VACATED, and the case is REMANDED for further proceedings consis-
tent with this ruling. All other outstanding motions are DENIED.
We express no view on the merits of Tepp’s claims or on what pro-
cedures the district court should use to resolve them.

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