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


                                      No. 14-20543
                                                                                 FILED
                                                                           October 26, 2015
                                                                            Lyle W. Cayce
MARLON DANTRUCE WILLIAMS,                                                        Clerk

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, 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. 4:14-CV-2098


Before DENNIS and COSTA, Circuit Judges, and ENGELHARDT, * District
Judge.
PER CURIAM: **
       Marlon Dantruce Williams, a Texas prisoner, moves for a certificate of
appealability (COA) and to proceed in forma pauperis (IFP) to appeal the
dismissal of his 28 U.S.C. § 2254 application in which he challenged his murder
conviction. Williams had filed a state habeas application arguing prosecutorial
misconduct and ineffective assistance of counsel. He filed the instant § 2254


       * Chief Judge of the Eastern District of Louisiana, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
                                 No. 14-20543

application more than two years later, acknowledging that a state habeas
application was pending and asking the court to excuse the exhaustion
requirement because of the state courts’ “inordinate delay” in ruling on his
state application. The district court dismissed Williams’s § 2254 application
without prejudice for failure to exhaust state remedies. In his pro se brief,
Williams challenges the district court’s dismissal of his application, arguing
that his state habeas application has been pending for more than three years
and that the district court failed to consider whether the exhaustion
requirement should be excused.
      To obtain a COA, an applicant must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district
court dismissed Williams’s § 2254 application on procedural grounds, a COA
should issue only if he shows “that jurists of reason would find it debatable
whether the [application] 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).
      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 will be 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) (citations
and internal quotation marks omitted). Relevant to the instant case, such
exceptional circumstances exist “when the state system inordinately and
unjustifiably delays review of a petitioner’s claims so as to impinge upon his
due process rights.” Id. To excuse the exhaustion requirement, this inordinate




                                       2
                                       No. 14-20543

delay must be “wholly and completely the fault of the state,” and the applicant
must have “clean hands.” Id. at 796.
      In several published opinions predating the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 1 this court
excused the exhaustion requirement where state courts delayed ruling on a
state habeas application for more than a year. See, e.g., Breazeale v. Bradley,
582 F.2d 5, 6 (5th Cir. 1978) (excusing exhaustion where state habeas
application had been “completely dormant for over one year, and the state has
offered us no reason for its torpor”); Shelton v. Heard, 696 F.2d 1127, 1128 (5th
Cir. 1983) (“unexplained 16-month hiatus between the date the record was
completed . . . and filed in the Texas Court of Criminal Appeals” supported
waiver of exhaustion requirement). This case law has never been overruled,
and we have continued to apply it in unpublished opinions after AEDPA’s
enactment. See, e.g., Henderson v. Stephens, 598 F. App’x 302, 302 (5th Cir.
2015); Taylor v. Stephens, 577 F. App’x 285, 287 (5th Cir. 2014); Burks v.
Thaler, 421 F. App’x 364, 365 (5th Cir. 2011).
      Williams’s state habeas application has been pending for more
than three years, and there is no evidence of any activity in the last
27 months. These periods exceed the range we have previously considered
excessive. See, e.g., Breazeale, 582 F.2d at 6. The record is silent as to the
reasons for this delay because the district court dismissed Williams’s
application without the Respondent’s response. In light of our case law, it is,
at the very least, debatable amongst reasonable jurists whether the district
court erred in failing to ascertain whether the delay in processing the state




      1   Pub. L. No. 104-132, 110 Stat. 1214.


                                                 3
                                     No. 14-20543

application was justifiable before dismissing the application for failure to
exhaust. 2 See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      As to whether Williams stated a valid claim of the denial of a
constitutional right, a complete copy of the state court record is not before this
court, and the district court has not analyzed the merits of his application.
Where the district court pleadings, the record, and the COA application are
unclear or incomplete, this court will grant a COA. Houser v. Dretke, 395 F.3d
560, 562 (5th Cir. 2004).         Accordingly, Williams’s request for a COA is
GRANTED. Williams’s motion to proceed IFP is also GRANTED.
      The rule of the Fifth Circuit Plan Under the Criminal Justice Act, § 2
permits this court to appoint counsel to persons seeking relief under § 2254
where “the interests of justice so require and such person is financially unable
to obtain representation.” See also 18 U.S.C. § 3006A(g). Williams is unable
to afford representation; he is proceeding IFP. See Schwander v. Blackburn,
750 F.2d 494, 502 (5th Cir. 1985). Moreover, Williams’s appeal may require
the court to decide whether our pre-AEDPA holdings—that an unexplained
delay of over one year in processing an applicant’s state habeas application
excuses the exhaustion requirement—remain valid precedent.                    The court
would be more likely to reach the correct resolution of this issue if attorneys
for both Williams and the Respondent argue their respective positions. See
United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008). Accordingly,
Williams is APPOINTED COUNSEL. Appointed counsel is ordered to file a
supplemental brief on Williams’s behalf, to address, among other things,




      2   We have yet to squarely decide what effect AEDPA’s enactment has had on our pre-
AEDPA exhaustion cases, if any. We need not resolve this issue at this time, however.
Because these cases have never been overruled, it is, at the least, debatable whether the
district court erred in its procedural ruling.


                                            4
                               No. 14-20543

whether this court’s pre-AEDPA exhaustion precedent remains good law
following AEDPA’s enactment.




                                    5
