               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                        __________________

                            No. 96-50162
                        USDC No. W-96-CV-36
                         __________________


BOBBY JOE SMITH,

                                      Petitioner-Appellant,

versus

STATE OF OKLAHOMA et al.,

                                      Respondents-Appellees.


                       ---------------------

          Appeal from the United States District Court
                for the Western District of Texas

                       ---------------------

                          June 14, 1996
Before HIGGINBOTHAM, DUHE’ and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Bobby Joe Smith requests a certificate of probable cause

(CPC) to appeal.   The district court dismissed Smith's habeas

corpus petition for failure to exhaust state remedies, but did

not specify which state or what remedies were to be exhausted.

He was not given an opportunity in the district court to show, as

he has alleged in this court, that attempting to exhaust state


     *
        Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
                             No. 96-50162
                                  -2-


remedies would be futile.    See 28 U.S.C. § 2254(b); Deters v.

Collins, 985 F.2d 789, 795 n.16 (5th Cir. 1993).   Smith’s request

for CPC is GRANTED.   The judgment of the district court is

VACATED, and this action is REMANDED to the district court to

determine what, if any, remedies are available to Smith in Texas

and/or Oklahoma, and whether his attempt to exhaust state

remedies would be futile.

     VACATED and REMANDED.
