Burrell v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-41109 USDC No. 6:97-CV-617

CLYDE J. BURRELL,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

--------------------- Appeal from the United States District Court for the Eastern District of Texas --------------------- July 21, 1998 Before JOLLY, DAVIS and JONES, Circuit Judges.

BY THE COURT:

Clyde J. Burrell, Texas inmate #689253, seeks a certificate

of appealability (COA) to appeal the dismissal of his habeas

petition, a dismissal based upon Burrell’s failure to exhaust his

state-court remedies. IT IS ORDERED that COA is GRANTED and the

case is VACATED AND REMANDED for further proceedings. Clark v.

Williams, 693 F.2d 381, 382 (5th Cir. 1982).

The Texas courts will not entertain a habeas challenge such

as Burrell’s which challenges thirteen prison disciplinary

proceedings. See Ex parte Palomo, 759 S.W.2d 671, 674 (Tex.

Crim. App. 1988); Ex parte Brager, 704 S.W.2d 46, 46 (Tex. Crim. O R D E R No. 97-41109 - 2 -

App. 1986). Burrell argues that he sufficiently exhausted his

administrative remedies through the prison grievance system and

that this is sufficient exhaustion. The district court’s

dismissal relied exclusively on the lack of exhaustion through

the presentation of the claims in state court. On remand, the

district court should determine whether Burrell’s habeas

challenge to thirteen disciplinary proceedings has been exhausted

through the prison grievance system and if so, whether the

challenge has merit.

COA GRANTED. VACATED AND REMANDED.