     Case: 11-20242     Document: 00511955040         Page: 1     Date Filed: 08/13/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 13, 2012

                                       No. 11-20242                        Lyle W. Cayce
                                                                                Clerk

JUAN ALBERTO MENDOZA,

                                                  Petitioner–Appellant,
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent–Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:10-CV-446


Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Petitioner–Appellant Juan Alberto Mendoza (Mendoza) appeals the
district court’s dismissal without prejudice of his habeas corpus application for
failure to exhaust state court remedies.                We granted a Certificate of
Appealability (COA) to determine whether Mendoza’s failure to exhaust state
court remedies should be excused because Mendoza’s petition had been pending
in Texas state court for over five years.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                    No. 11-20242

      In 2003, Juan Alberto Mendoza was found guilty by a jury of murder and
sentenced to life imprisonment. An intermediate Texas appellate court affirmed
Mendoza’s conviction, and his petition for discretionary review was denied by the
Texas Court of Criminal Appeals (TCCA).1 Mendoza then filed a postconviction
application in state district court on December 19, 2005. This application
remained pending until August 1, 2012, when the TCCA denied Mendoza’s
application.
      While the state postconviction proceedings remained pending, Mendoza
filed a pro se application on December 22, 2009, in federal district court
pursuant to 18 U.S.C. § 2254 in which he argued that his counsel was ineffective
for various reasons before and during his trial and for failing to move for a new
trial. Mendoza asserted that he raised these claims in his state postconviction
application and contended that in January 2006 the state postconviction judge
had issued an order designating issues and ordering that the application not be
forwarded to the TCCA. No further action was taken in state court, and his
action remained suspended in the state trial court.
      Mendoza also requested a protective stay and abeyance of his § 2254
application while his state postconviction application remained pending. He
argued that the stay was needed because there were only three days left in the
one-year limitations period for filing his § 2254 application once the state
postconviction court finally rendered its decision.
      Respondent filed a motion to dismiss the § 2254 application for failure to
exhaust state court remedies.        Respondent supported its contention that
Mendoza had failed to exhaust his state court remedies with an affidavit from
the TCCA stating that it had no record of the postconviction case described by
Mendoza. However, Respondent also confirmed with the Harris County District

      1
         Mendoza v. State, No. 01-03-00588-CR, 2004 WL 737509, at *2 (Tex. App.—Houston
[1st Dist.] Mar. 18, 2004, pet ref’d).

                                          2
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                                  No. 11-20242

Attorney’s Office that Mendoza’s state postconviction application had been
pending in state court since December 2005, just as Mendoza had stated.
      Mendoza filed a response reiterating the arguments raised in his
memorandum in support of a stay and abeyance. Additionally, he argued at
length that the state postconviction procedure was inadequate and ineffective
to protect his habeas corpus rights due to the state’s failure to resolve his state
postconviction claims and that any return to the state postconviction court would
be futile because there was no state time limit for forwarding a state
postconviction application to the TCCA after issues had been designated.
      The district court dismissed Mendoza’s § 2254 application without
prejudice for failure to exhaust state remedies. In doing so, the court determined
that Mendoza’s argument that he was entitled to stay and abate his case due to
his fear that he would not have time to file his § 2254 application during the
remaining three days of the limitations period after the TCCA rendered its
decision did not constitute sufficient cause to stay Mendoza’s § 2254 application.
The district court also held that Mendoza did not request that his state court
remedies be deemed exhausted due to the state postconviction court’s time delay.
Finally, the district court denied Mendoza a COA.
      This court denied Mendoza a COA as to his argument that he was entitled
to a stay of his § 2254 application. However, we granted a COA to determine
whether exhaustion should be excused because Mendoza’s state habeas
application had been delayed for more than five years in the state trial court.
On August 1, 2012, after we granted a COA on whether exhaustion should be
excused, the TCCA denied Mendoza’s state court postconviction application. It
appears that the issues presented in Mendoza’s state habeas application have
now been exhausted, and therefore we do not reach the merits of whether delay
in state court should excuse a failure to exhaust. Under these circumstances,
the issue on which we granted a COA to review the district court’s order of

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                                       No. 11-20242

dismissal appears to have become moot on appeal,2 and the basis upon which the
district court dismissed the habeas petition no longer obtains.
                                   *        *         *
      Accordingly, we VACATE the district court’s dismissal based on a lack of
exhaustion in state court, and REMAND for consideration of Mendoza’s
application in light of the recent state court action.




      2
        See Neal v. Cook, 102 F.3d 550, 1996 WL 670534 (5th Cir. 1996) (per curiam)
(unpublished table disposition); Carter v. Vaughn, 62 F.3d 591, 593 n.5 (3rd Cir. 1995);
Doescher v. Estelle, 616 F.2d 205, 206 (5th Cir. 1980).

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