Jackson v. Armstrong

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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