Jackson v. Armstrong ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60935
DAVID DONNELL JACKSON,
Petitioner-Appellant,
versus
ROBERT ARMSTRONG,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:01-CV-584-BN)
_________________________________________________________________
May 23, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges
PER CURIAM:*
David Donnell Jackson, Mississippi prisoner # 39640, seeks a
certificate of appealability (“COA”) to appeal the district court’s
dismissal without prejudice of his 28 U.S.C. § 2254 petition for
failure to exhaust his state remedies, pursuant to 28 U.S.C. §
2254(b)(1)(A). To obtain a COA, Jackson must make a substantial
showing of the denial of a constitutional right, which requires him
to show that “jurists of reason would find it debatable whether the
*
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this opinion should not be published and is not precedent except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.
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); see 28 U.S.C. § 2253(c)(2).
Jackson argues that he should not be required to exhaust
because his state habeas application remains pending and has been
unduly delayed by the Mississippi Supreme Court. However, the
Mississippi Supreme Court clerk’s office confirms that Jackson’s
postconviction motion was denied on April 5, 2002, while the
instant appeal was pending. Because he has now exhausted his state
remedies, COA is GRANTED, the district court’s dismissal is
VACATED, and the case is REMANDED for further proceedings on the
merits. See Sharpe v. Buchanan, 317 U.S. 238, 238-39 (1942);
Bufalino v. Reno, 613 F.2d 568, 571 (5th Cir. 1980); McDaniel v.
Sheriff of Dallas County, 445 F.2d 851, 852 (5th Cir. 1971).
COA GRANTED; CASE VACATED AND REMANDED