IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31281
USDC No. 97-CV-2123
TERRY MICHAEL JOHNSON,
Petitioner-Appellant,
versus
BURL CAIN, Warden,
Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
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May 31, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Terry Michael Johnson, Louisiana prisoner No. 292732, seeks
a certificate of appealability (COA) to appeal the district
court’s dismissal of certain of his 28 U.S.C. § 2254 claims
without prejudice for failure to exhaust state remedies and of
other claims as time-barred under 28 U.S.C. § 2244(d)(1). COA is
GRANTED and the case is VACATED AND REMANDED to the district
court for further proceedings consistent with this opinion.
*
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that this opinion should not be published and is not precedent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. 98-31281
-2-
The partial state records filed in this case are inadequate
to support the district court’s assumption that Johnson has not
exhausted his state remedies with regard to his claims of an
illegal arrest and insufficient evidence. See Magouirk v.
Phillips, 144 F.3d 348, 362-63 (5th Cir. 1998). Additionally,
the district court did not address Johnson’s assertion, supported
by documentary evidence in the record, that the limitations
period was tolled by a state habeas application which was pending
from April 1996 until March 14, 1997. See 28 U.S.C.
§ 2244(d)(2).
On remand, after obtaining all of Johnson’s relevant state-
court records, the district court should first address whether
the limitations period was tolled by the pendency of Johnson’s
state habeas application or whether Johnson’s federal habeas
claims are time-barred. If the court determines that Johnson’s
federal habeas application was timely, it should then address
whether Johnson’s application contains both exhausted and
unexhausted claims. If the district court determines that
Johnson’s application is not time-barred, but that some of his
claims are unexhausted, it should address whether the unexhausted
claims are “technically exhausted” because they are procedurally
barred under state law and, thus, subject to federal review under
the standards applicable to procedurally defaulted claims. See
Jones v. Jones, 163 F.3d 285, 296 (5th Cir. 1998). If the court
determines that Johnson’s application contains both exhausted and
unexhausted claims, Johnson should be afforded an opportunity to
amend his application to present only his claims which are
No. 98-31281
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exhausted before his application is dismissed for failure to
exhaust state remedies. Rose v. Lundy, 455 U.S. 509, 5518-33
(1982).
COA GRANTED; VACATED AND REMANDED.