46 F.3d 1133
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Evelio DUARTE-VESTAR, Petitioner/Appellant,v.Gary R. McCAUGHTRY, Respondent/Appellee.
No. 94-3569.
United States Court of Appeals, Seventh Circuit.
Submitted Jan. 5, 1995.Decided Jan. 31, 1995.

Before POSNER, Chief Judge, and FLAUM and KANNE, Circuit Judges.

ORDER

1
Duarte-Vestar filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254.  The district court dismissed the petition and declined to issue a certificate of probable cause.  We grant the petitioner's request for the issuance of a certificate of probable cause, vacate the judgment of the district court, and remand.


2
The district court's denial of Duarte-Vestar's petition for a writ of habeas corpus stated that petitioner had not exhausted state remedies.  The district court, in its denial of a motion for reconsideration, acknowledged petitioner alleged exhaustion in his petition, but concluded that the "allegations do not support a claim that his state custody is unconstitutional."   The state court record was not made part of the record on appeal.  Nor does it appear to have been available for review by the district court.


3
We therefore conclude that the district court should determine whether petitioner has exhausted his state court remedies, aided by the state court record.  If the claims are indeed exhausted, the district court should then determine whether petitioner is entitled to relief on the merits.


4
Therefore, we GRANT the request for the issuance of a certificate of probable cause, VACATE the judgment of the district court, and REMAND for further proceedings.

