IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10418
Conference Calendar
DARRELL RUSSELL,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, IN HIS
OFFICIAL CAPACITY,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:97-CV-15
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April 19, 1999
Before JONES, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:*
Darrell Russell, Texas prisoner # 674336, appeals from the
district court’s dismissal without prejudice of his 28 U.S.C.
§ 2254 petition for failure to exhaust his state remedies. The
district court granted a certificate of appealability on the
exhaustion issue.
Unbeknownst to the district court, the Texas Court of
Criminal Appeals denied Russell’s state application shortly
*
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that this opinion should not be published and is not precedent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.
No. 98-10418
-2-
before the entry of the district court’s order. The respondent
now concedes exhaustion. Accordingly, we VACATE and REMAND for
further proceedings. Russell’s motions to expedite the appeal
are DENIED as MOOT.
VACATE AND REMAND; MOTIONS DENIED.