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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. v. Court of Appeal of California, No. 98-7809,

(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,

(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,

(5th Cir. 1998)

(“Compliance with the COA requirement of

(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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