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

                                                                            FILED
                                                                        September 14, 2012

                                      No. 11-40396                         Lyle W. Cayce
                                    Consolidated with                           Clerk
                                        11-40398


RICHARD JAMES BUCKNELL,

                                                  Petitioner-Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee



                   Appeals from the United States District Court
                         for the Eastern District of Texas
                                 No. 4:10-cv-00216
                                 No. 4:10-cv-00184


Before JONES, Chief Judge, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
       Richard James Bucknell, Texas prisoner # 1277904, appeals from the
judgments entered by two district courts dismissing without prejudice his two
applications for a writ of habeas corpus under 28 U.S.C. § 2254 for failure to
exhaust state remedies. Because Respondent concedes that the district courts


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                               Consolidated with
                                   11-40398

erred by dismissing Bucknell’s applications for failure to exhaust, we VACATE
the district courts’ judgments and REMAND for further proceedings on the
merits.
      A Texas jury convicted Bucknell on two counts of aggravated sexual
assault of a child, and he was sentenced to fifty years of imprisonment for each
conviction. The state trial court assigned a separate docket number for each
count, and Bucknell’s convictions were affirmed on direct appeal. Bucknell then
filed two state habeas applications, one for each docket number, raising several
ineffective assistance claims. Almost eighteen months later, Bucknell filed a
single federal habeas application without waiting for the state courts to rule on
his state habeas applications; his federal habeas application raised the same
ineffective assistance claims raised in his state applications. Bucknell also filed
a motion to waive the state exhaustion requirement, citing the State’s
“unjustifiable and inordinate delay”in resolving his state habeas applications.
The district court severed the proceedings to account for the two different state
court docket numbers. In both of the severed cases, the magistrate judges
recommended dismissing Bucknell’s federal applications sua sponte for failure
to exhaust his state remedies.       When the magistrate judges made their
recommendations, the Texas Court of Criminal Appeals (“CCA”) had not yet
ruled on Bucknell’s pending state writs.
      However, before the two district courts addressed the magistrate judges’
recommendations, the CCA denied Bucknell’s state applications without a
written order. About a month later, the two district courts overruled Bucknell’s
objections, adopted the findings and conclusions of the magistrate judges, and
dismissed his federal habeas applications without prejudice. Bucknell timely
noticed an appeal in both cases. Because Bucknell had apparently exhausted his
state remedies prior to entry of the district courts’ judgments, we permitted

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                                 Consolidated with
                                     11-40398

Bucknell to proceed in forma pauperis, granted certificates of appealability, and
consolidated his two appeals.
      Respondent confesses error in the district courts’ judgments below. He
argues that district courts should test exhaustion at the time they act upon a
state prisoner’s federal habeas application, rather than at the time the federal
habeas application was filed.      Because Bucknell exhausted his ineffective
assistance claims in state court before the district courts dismissed his federal
habeas applications, Respondent argues that we should vacate the district
courts’ judgments and remand for further proceedings.
      We review “de novo whether a federal habeas petitioner exhausted all
available state court remedies.” Smith v. Quarterman, 515 F.3d 392, 400 (5th
Cir. 2008) (citation omitted).
       “Before seeking a federal writ of habeas corpus, a state prisoner must
exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the
State the opportunity to pass upon and correct alleged violations of its prisoners’
federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citation and internal
quotation marks omitted). However, the “exhaustion of state habeas remedies
is not a jurisdictional prerequisite and, as a result, may be waived by the State.”
Earhart v. Johnson, 132 F.3d 1062, 1065 (5th Cir. 1998) (citations omitted).
      Under these circumstances, we hold that the district courts erred by
dismissing Bucknell’s federal habeas applications for failure to exhaust state
remedies. First, Bucknell exhausted his state court remedies by the time the
district courts dismissed his federal habeas applications. See Buffalino v. Reno,
613 F.2d 568, 571 (5th Cir. 1980) (noting that a “federal court can give relief,
even though the state remedies had not been exhausted when the habeas corpus
petition was filed, if they are exhausted by the time that the federal court acts”)
(quoting 17 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

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                                   11-40398

FEDERAL PRACTICE AND PROCEDURE § 4264, at 654 (1978)). Moreover, the CCA
denied Bucknell’s state habeas applications without a written order, and neither
party has made any contention that the CCA dismissed his state habeas
applications for a procedural reason. Accordingly, the CCA was “given a fair
opportunity to pass on the merits of [Bucknell’s] constitutional claim[.]” Id.
(citation omitted). Lastly, Respondent has waived the exhaustion requirement
on appeal. Although we have the discretion to reject the Respondent’s “waiver
in the interests of comity[,]” Earhart, 132 F.3d at 1065, there is no reason to do
so in this case because the CCA has already passed on the merits of Bucknell’s
constitutional claims. Cf. id. at 1065–66 (noting that if a “case presents an issue
involving an unresolved question of fact or state law, the court may insist on
complete exhaustion to ensure its ultimate review of the issue is fully informed”)
(citation omitted); see Koehl v. Cockrell, 44 F. App’x 651, 2002 WL 1396939, at
*1 (5th Cir. June 6, 2002) (“The respondent concedes that, by virtue of a decision
by the [CCA], Koehl exhausted the claims presented in his state [habeas]
application . . . during the pendency of proceedings in the district court. Koehl
was therefore entitled to consideration of his 28 U.S.C. § 2254 application insofar
as it presented exhausted claims.”) (citation omitted); Jackson v. Armstrong, 37
F. App’x 713, 2002 WL 1217673, at *1 (5th Cir. May 23, 2002) (vacating a district
court’s dismissal of a state prisoner’s federal habeas application because the
Mississippi Supreme Court denied his postconviction motion while his federal
appeal was pending).
      Bucknell contends that merely vacating and remanding to the district
courts will cause him to “automatically lose” because his § 2254 applications do
not argue that the CCA’s disposition of his ineffective assistance claims was an
“unreasonable application of federal law” or an “unreasonable determination of
the facts.” However, even if we were to assume that Bucknell’s concerns could

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                                        11-40398

have merit in other § 2254 appeals, they do not find purchase in this case
because the CCA denied his state habeas applications without any explanation
and there is no evidence that it did so for procedural reasons. Accordingly,
Bucknell will not be precluded from showing on remand that he is entitled to
habeas relief under 28 U.S.C. § 2254(d)(1).
       For the foregoing reasons, we VACATE the district courts’ judgments
dismissing Bucknell’s federal habeas applications, and we REMAND for further
proceedings on the merits.1




       1
         Lastly, Respondent claims that Magistrate Judge Mazzant appears to have considered
certain procedural aspects of Bucknell’s claims on direct appeal while he was serving as a state
appellate judge. We will not address this issue in the first instance as the parties may do so
on remand. Additionally, these two cases should be consolidated on remand so the district
court can produce a unified opinion and order.

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