                       IN THE UNITED STATES COURT OF APPEALS

                                    FOR THE FIFTH CIRCUIT



                                             No. 00-11069
                                           Summary Calendar



WALTER HENRY PRICE,

                                                                                       Petitioner-Appellant,

                                                   versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,

                                                                                      Respondent-Appellee.

                           --------------------------------------------------------
                             Appeal from the United States District Court
                                   for the Northern District of Texas
                                      USDC No. 3:00-CV-1189-X
                           --------------------------------------------------------
                                             August 22, 2001

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges:

PER CURIAM:*

        Walter Price, Texas prisoner #808397, appeals the district court’s dismissal of his claim that

two codefendants (Darren Bealer and Albert Williamson), who testified that Price was involved in the

subject robbery, lied at trial. Price’s claim was supported by recant ing affidavits from Bealer and

Williams. The district court dismissed the claim because Price had not submitted the affidavits with

his 28 U.S.C. § 2254 petition. A certificate of appealability (COA) was granted on this issue and the

respondent was directed to file in this court the affidavits, if they existed, and the relevant portions of

the trial record. The respondent has filed the affidavits and the state court records.




         *
           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 R. 47.5, the court has determined that this opinion should not be
 published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       We decline to review the respondent’s argument, which was raised for the first time on appeal,

that Price procedurally defaulted his recanting-affidavits claim because he submitted the affidavits to

the Texas Court of Criminal Appeals with one of his petitions for discretionary review but did not

include them with his state habeas application. See Fisher v. State of Texas, 169 F.3d 295, 301 (5th

Cir. 1999).

       Although the respondent contends that the affidavits were fabricated, such a determination

is a factual finding which we cannot make with the record before us. Nor are we able to determine

if the affidavits are believable. See Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir. 1996). We are

also not able to determine whether the affidavits, if genuine and believable, would have materially

affected Price’s trial. Such findings and determinations should be made by the district court. See

Fairman v. Anderson, 188 F.3d 635, 646-47 (5th Cir. 1999).

       The dismissal of Price’s claim that Bealer and Williams gave false testimony at trial as stated

in the affidavits, which no court has considered, is VACATED. The case is REMANDED, and the

district court should determine whether the affidavits are genuine, whether the affidavits are

believable, and whether, if genuine and believable, such would have materially affected Price’s trial.

       VACATED and REMANDED.




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