UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-41054
Summary Calendar
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THEODORE FLANAGAN,
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
(9:96-CV-231)
_________________________________________________________________
January 5, 1999
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Theodore Flanagan, Texas prisoner #734335, appeals the denial
of his 28 U.S.C. § 2254 petition for writ of habeas corpus. The
district court held that Flanagan’s claims were procedurally
barred.
Federal habeas review of a claim is procedurally barred if the
last state court to consider the claim expressly and unambiguously
based its denial of relief on a state procedural default. Coleman
v. Thompson, 501 U.S. 722, 750 (1991).
*
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that this opinion should not be published and is not precedent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.
The district court adopted the magistrate judge’s conclusion
that federal habeas review was precluded because the last reasoned
opinion by the state court had denied Flanagan’s claims based upon
an adequate and independent state procedural bar. The district
court focused on the state appellate court’s decision dismissing
Flanagan’s direct appeal rather than on the Texas Court of Criminal
Appeals’ denial of Flanagan’s application for state habeas relief.
Flanagan’s direct appeal was dismissed for want of jurisdiction
because Flanagan had pleaded guilty, waived his right to appeal his
conviction, and had not obtained the trial court’s permission to
appeal. Flanagan v. State, No. 12-95-00218-Cr (Tex. Ct. App.
1995). Although Flanagan’s direct appeal was foreclosed by state
law as a result of his guilty plea, Flanagan did not necessarily
waive his right to pursue state post-conviction remedies. See
Haller v. State, 933 S.W.2d 262, 263 (Tex. Ct. App. 1996); Russell
v. Scott, No. 95-10039 (5th Cir. Oct. 26, 1995) (unpublished).
The Texas Court of Criminal Appeals denied Flanagan’s habeas
application without written order. “In [the Texas Court of
Criminal Appeals’] writ jurisprudence, a ‘denial’ signifies that
[the court] addressed and rejected the merits of a particular claim
while a ‘dismissal’ means that [the court] declined to consider the
claim for reasons unrelated to the claim’s merits.” Ex parte
Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (en banc). In
responding to Flanagan’s state habeas application, the State did
not raise any procedural grounds for denying relief; instead, it
addressed the merits of Flanagan’s claims. The state trial court
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denied Flanagan’s habeas application on the merits, finding that
“there are no controverted, previously unresolved facts material to
the legality of the applicant’s confinement”.
Under these circumstances, we conclude that the Texas Court of
Criminal Appeals denied Flanagan’s habeas application on the
merits. Accordingly, the district court erred by dismissing
Flanagan’s federal habeas claims as procedurally barred. We
therefore VACATE the judgment and REMAND the case for further
proceedings. Of course, in so doing, we express no view as to the
merits of Flanagan’s claims.
VACATED and REMANDED
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