               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-11359
                         Summary Calendar



LESTER DON PARKS,

                                         Petitioner-Appellee,

versus

JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                         Respondent-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 6:98-CV-26-C
                       --------------------
                          April 24, 2002

Before JOLLY, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Janie Cockrell, the Director of the Texas Department of

Criminal Justice, Institutional Division, appeals the district

court’s judgment granting an out-of-time appeal to Lester Don

Parks, Texas prisoner # 765940.   The district court determined

that Parks’ trial counsel was ineffective in that he did not

advise Parks of his right to appeal and the applicable time

limitations, and he did not follow through with his promise to

file a notice of appeal on behalf of Parks.   The Respondent

     *
        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that this opinion should not be published and is not precedent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. 01-11359
                                  -2-

argues that Parks’ claim is conclusional and that the district

court erred in considering Teresa Moore’s affidavit because Parks

did not submit Moore’s affidavit to the state habeas court.

Although Parks did not present Moore’s affidavit to the state

court, “all crucial factual allegations were before the state

courts at the time they ruled on the merits,” and, therefore, the

claim was fairly presented to the state court and has been

exhausted.     See Dowthitt v. Johnson, 230 F.3d 733, 746 (5th Cir.

2000), cert. denied, 532 U.S. 915 (2001).    Further, the district

court noted that Moore’s affidavit was cumulative of Parks’

allegations.    Parks’ claim is not conclusional as he alleged

under penalty of perjury that counsel did not advise him of his

right to appeal or the applicable time limits and that counsel

promised to file an appeal but failed to do so.     See 28 U.S.C.

§ 1746; Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306

(5th Cir. 1988).

     The Respondent argues that the district court erred in

granting Parks’ habeas petition on this issue without conducting

an evidentiary hearing; however, the Respondent argues that under

28 U.S.C. § 2254(e)(2), Parks is not entitled to an evidentiary

hearing because he failed to develop the record in the state

habeas court.    The Respondent also argues that the district court

erred in shifting the burden of proof to the Respondent.    The

failure to develop the state record is not attributable to Parks,

as the state habeas court did not order either party to submit

affidavits, did not hold an evidentiary hearing, did not make

findings of fact or conclusions of law, and merely stated that
                          No. 01-11359
                               -3-

the application was denied by operation of law pursuant to Texas

Code of Criminal Procedure article 11.07 § 3(c).    See Williams v.

Taylor, 529 U.S. 362, 432 (2000).    Therefore, Parks is not

precluded from obtaining a federal evidentiary hearing by

28 U.S.C. § 2254(e)(2).   See Williams, 529 U.S. at 432.

     The district court may resolve factual issues through

consideration of conflicting affidavits.    See Brown v. Johnson,

224 F.3d 461, 466 (5th Cir. 2000); McDonald v. Johnson, 139 F.3d

1056, 1059-60 (5th Cir. 1998).   As noted above, Parks’

allegations made under penalty of perjury were the equivalent of

allegations made in an affidavit under 28 U.S.C. § 1746.     The

Respondent did not submit an affidavit from Parks’ trial counsel

as directed by the district court.    The district court did not

improperly shift the burden to the Respondent by ordering the

Respondent to file an affidavit from Parks’ trial counsel.        See

Brown, 224 F.3d at 466; McDonald, 139 F.3d at 1059-60.      The

district court did not err in holding that the only evidence

before the court supported Parks’ allegations that his counsel

stated he would file an appeal but failed to do so.    See Brown,

224 F.3d at 466; McDonald, 139 F.3d at 1059-60.    Parks’ motion

for appointment of counsel is DENIED.    Parks’ motion to

supplement the record is also DENIED.

     AFFIRMED; MOTIONS DENIED.
