IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40395
USDC No. 2:98-CV-51-DF
JAMES WILSON,
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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January 10, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
James Wilson, Texas prisoner # 655097, requests a
Certificate of Appealability (COA) to appeal the district court’s
dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust
state remedies. In his § 2254 petition, Wilson raised only the
issue of whether the prosecution failed to disclose evidence
favorable to the defense in violation of Brady v. Maryland, 373
U.S. 83 (1963). He argues that he exhausted this issue by
*
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that this opinion should not be published and is not precedent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.
raising it in his second state application for post-conviction
relief.
An applicant must make a substantial showing of the denial
of a constitutional right to obtain a COA. See § 2253(c)(2). In
order to obtain a COA for the nonconstitutional issue of
dismissal for failure to exhaust state remedies, the applicant
must first make a credible showing of exhaustion. See Murphy v.
Johnson, 110 F.3d 10, 11 (5th Cir. 1997). Only if that question
is answered in the affirmative will the court consider whether
the applicant has made a substantial showing of the denial of a
constitutional right on the underlying claim. Id.
Wilson plainly raised the Brady issue in his second state
petition for post-conviction relief which the Texas Court of
Criminal Appeals dismissed under TEX. CODE CRIM. P. ANN. art.
11.07, § 4. Therefore, he has exhausted state remedies with
respect to this issue, and the district court erred in dismissing
his petition. This court ordinarily would proceed to the merits
of Wilson’s habeas claim. See Sonnier v. Johnson, 161 F.3d 941,
945-46 (5th Cir. 1998). However, this court lacks jurisdiction
to do so in the instant case because the district court did not
address the merits of Wilson’s claim as an alternative to its
procedural holding. See id.; Whitehead v. Johnson, 157 F.3d 384,
387-88 (5th Cir. 1998). Accordingly, COA is GRANTED, the
judgment of the district court is VACATED, and the case is
REMANDED to the district court for further proceedings.