Horton v. Scott

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-10065 USDC No. 3:94-CV-2153-R __________________

BILLY WAYNE HORTON,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director, Texas Dep't of Criminal Justice, Institutional Division,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the Northern District of Texas ____________________ (June 6, 1995) Before KING, HIGGINBOTHAM and DeMOSS, Circuit Judges.

BY THE COURT:

Billy Wayne Horton's notice of appeal has been treated as a

request for a certificate of probable cause (CPC) pursuant to

Fed. R. App. P. 22(b). Horton exhausted his state habeas corpus

remedies with respect to the claims raised in the instant

petition subsequent to the district court's entry of judgment

dismissing his petition for failure to exhaust. See Picard v.

Conner, 404 U.S. 270, 275-78 (1971).

Therefore, Horton's motion for CPC is GRANTED, the judgment

of the district court is VACATED, and the petition is REMANDED

for consideration of the merits. See Clark v. Williams, 693 F.2d

381, 382 (5th Cir. 1982). The district court is also directed to O R D E R No. 95-10065 -2-

determine whether Horton was "in custody" for the instant

burglary conviction at the time that he filed his federal

petition. See Thompson v. Collins, 981 F.2d 259, 261 (5th Cir.

1993); see also Garlotte v. Fordice, 29 F.3d 216, 217 (5th Cir.

1994), cert. granted, 115 S. Ct. 929 (1995), rev'd. 1995

WL 318633 (U.S. May 30, 1995).