     Case: 12-20343       Document: 00512117956         Page: 1     Date Filed: 01/18/2013




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

                                                                            FILED
                                                                         January 18, 2013
                                     No. 12-20343
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DANIEL SERGIO HANSEN,

                                                  Petitioner-Appellant

v.

RICK THALER, 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. 4:12-CV-1056


Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Daniel Sergio Hansen, Texas prisoner # 1469241, moves for a certificate
of appealability (COA) and to proceed in forma pauperis (IFP) to appeal the
dismissal without prejudice for failure to exhaust state court remedies of his
28 U.S.C. § 2254 petition challenging his conviction for possession with intent
to deliver cocaine. Hansen argues that the district court failed to consider his
argument that the exhaustion requirement should have been excused in light of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20343     Document: 00512117956      Page: 2    Date Filed: 01/18/2013

                                  No. 12-20343

the state court’s failure to act on his pending state habeas application for more
than two years. He contends that the excessive delay has caused an absence of
State corrective processes resulting in the denial of his due process rights.
      A federal court may not grant habeas relief unless the petitioner “has
exhausted the remedies available in the courts of the State.” § 2254(b)(1)(A).
The exhaustion requirement is excused “only in those rare cases where
exceptional circumstances of peculiar urgency mandate federal court
interference.” Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993) (internal
quotation marks and citation omitted). “Exceptional circumstances of peculiar
urgency” exist, and the exhaustion doctrine will not be applied, “when the state
system inordinately and unjustifiably delays review of a petitioner’s claims so
as to impinge upon his due process rights.” Id. Noncompliance with the
exhaustion doctrine is excused only if the inordinate delay is wholly and
completely the fault of the State; the petitioner’s hands must be clean. Id. at
796. In determining whether the delay is violative of due process, the following
factors are examined: (1) the length of the delay; (2) the reasons for the delay;
(3) the petitioner’s assertion of his right; and (4) the prejudice to the petitioner
on account of the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972).
      Hansen’s state habeas application has been pending for over two years,
which exceeds the range we have previously considered excessive. See Breazeale
v. Bradley, 582 F.2d 5, 6 (5th Cir. 1978); St. Jules v. Beto, 462 F.2d 1365, 1366
(5th Cir. 1972). Because the district court dismissed Hansen’s petition for
failure to exhaust state remedies before service on the Respondent, there has
been no opportunity for factual development to determine whether Hansen
contributed to the delay or whether the delay is justifiable. Consequently, the
district court’s procedural determination is debatable, and Hansen’s requests for
a COA and to proceed IFP are granted. See Slack v. McDaniel, 529 U.S. 473, 484
(2000); Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).



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    Case: 12-20343    Document: 00512117956      Page: 3   Date Filed: 01/18/2013

                                  No. 12-20343

      The judgment dismissing Hansen’s petition is vacated and remanded for
further factual development regarding whether Hansen contributed to the delay
and whether the delay in considering his state habeas application is justifiable.
See Dixon v. Florida, 388 F.2d 424, 425-26 (5th Cir. 1968). If Hansen did not
contribute to the delay, and the delay is not justifiable, the district court is
instructed to rule on the merits of the federal petition. See id.
      COA and IFP GRANTED; VACATED AND REMANDED.




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