     Case: 16-20526      Document: 00514053836         Page: 1    Date Filed: 06/29/2017




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

                                      No. 16-20526                               FILED
                                                                             June 29, 2017
                                                                            Lyle W. Cayce
DANIELLE KEITH BURKS,                                                            Clerk

                                                 Petitioner-Appellant

v.

LORIE DAVIS, 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. 4:16-CV-1861


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Danielle Keith Burks, Texas prisoner # 1779069, moves for a certificate
of appealability (COA) to appeal the dismissal without prejudice of his
28 U.S.C. § 2254 application for failure to exhaust state court remedies. He
also moves for appointment of counsel. Burks challenges his state conviction
for tampering with evidence, for which he was sentenced to 30 years of
imprisonment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20526    Document: 00514053836     Page: 2   Date Filed: 06/29/2017


                                 No. 16-20526

      A COA may issue only if the applicant makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district
court’s denial of federal habeas relief is based on procedural grounds, “a
COA should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”          Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
      Given the lack of evidence in the record as to the current state of Burks’s
state habeas proceedings and the district court’s lack of findings as to whether
the reason for a nearly three-year delay was justifiable, jurists of reason could
question the district court’s procedural ruling dismissing the federal petition
for nonexhaustion. See id. In Burks’s § 2254 petition, he has asserted several
claims, at least some of which appear to facially assert a valid claim of the
denial of a constitutional right. See Gonzalez v. Thaler, 132 S. Ct. 641, 648
(2012); Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). We express no view
at this time on the proper resolution of Burks’s claims and observe only that
he has made a showing sufficient to warrant a COA. See id.
      Accordingly, Burks’s motion for a COA is GRANTED, the district court’s
judgment dismissing the motion for failure to exhaust state court remedies is
VACATED, and the matter is REMANDED for further factual development
regarding whether the delay in considering Burks’s state habeas application is
justifiable and whether the state proceedings are progressing.          See id.;
Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). If the delay is not
justifiable and the matter has not progressed in the state courts, the district
court shall proceed to consider the merits of the federal habeas petition.
Burks’s motion for appointment of counsel is DENIED.



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