   Case: 11-30325       Document: 00511711221         Page: 1     Date Filed: 12/30/2011




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

                                                                            FILED
                                                                        December 30, 2011
                                     No. 11-30325
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




YUL SINGLETON,

                                                  Petitioner-Appellant,

versus

LYNN COOPER, Warden,

                                                  Respondent-Appellee.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                No. 2:09-CV-3188




Before DAVIS, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       Yul Singleton, Louisiana prisoner # 302953, seeks a certificate of appeala-
bility (“COA”) to appeal the dismissal of his 28 U.S.C. § 2254 application chal-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30325    Document: 00511711221       Page: 2   Date Filed: 12/30/2011

                                   No. 11-30325

lenging his 2004 conviction and sentence for armed robbery. The district court
dismissed the application without prejudice for failure to exhaust state court
remedies, reasoning that although Singleton exhausted his claims that (1) the
State violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding significant,
exculpatory, and impeachment evidence regarding perjured testimony at trial;
and (2) the state knowingly used perjured testimony at trial, Singleton had
failed fully to exhaust his ineffective-assistance-of-counsel claims.
      Aside from reasserting that he was not required to exhaust his claim that
trial counsel was ineffective in failing to file a motion to reconsider the sentence,
Singleton does not challenge the determination that he failed properly to
exhaust his other ineffective-assistance claims and that his original § 2254 appli-
cation was a mixed application subject to dismissal without prejudice for failure
to exhaust state-court remedies. Those issues are therefore abandoned. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (holding that although pro
se briefs are afforded liberal construction, even pro se litigants must brief
arguments to preserve them).
      Singleton instead contends that reasonable jurists would debate whether
the district court erred when it dismissed his § 2254 application without
acknowledging his election to dismiss the unexhausted claims and proceed with
only his exhausted claims. According to Singleton, had the district court recog-
nized his election, it would have determined that his application was no longer
a mixed application, so it would have addressed the merits of his exhausted
claims. He also contends that reasonable jurists would debate whether he has
made a substantial showing of the denial of a constitutional right as to his
exhausted claims that (1) trial counsel was ineffective in failing to file a motion
to reconsider the sentence; (2) the state violated Brady by withholding signifi-
cant, exculpatory, and impeachment evidence regarding perjured testimony at
trial; and (3) the state knowingly used the perjured testimony at trial.
      In his timely objection to the magistrate judge’s report and recommenda-

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                                 No. 11-30325

tion, Singleton explicitly chose to dismiss his unexhausted claims and proceed
with only the exhausted claims. The district court considered the objection but
did not address the election to proceed with only the exhausted claims. There-
fore, Singleton has shown that reasonable jurists would debate whether the
court abused its discretion when it dismissed his § 2254 application for failure
to exhaust without acknowledging his election to amend his application to delete
the unexhausted claims. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose
v. Lundy, 455 U.S. 509, 510 (1982).
      Because the record is not sufficient to determine whether reasonable jur-
ists could debate whether Singleton has made a valid claim of a constitutional
deprivation, a COA is GRANTED on the procedural issue of whether the district
court abused its discretion when it dismissed Singleton’s § 2254 application for
failure to exhaust state court remedies without acknowledging his election to
amend his application to delete the unexhausted claims.. See Houser v. Dretke,
395 F.3d 560, 562 (5th Cir. 2004). Further briefing on this procedural issue is
unnecessary. The judgment is VACATED and REMANDED for further proceed-
ings. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). We express
no view on the ultimate disposition of the § 2254 application. Singleton’s motion
for leave to proceed in forma pauperis on appeal is GRANTED.




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