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.
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Appeal from the United States District Court
for the Eastern District of Texas
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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.