     Case: 12-20682       Document: 00512281766         Page: 1     Date Filed: 06/20/2013




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

                                                                            FILED
                                                                           June 20, 2013
                                     No. 12-20682
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

COLLINS O. NYABWA,

                                                  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. 4:12-CV-1152


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Collins O. Nyabwa, former Texas prisoner # 1729106, pleaded guilty to
three counts of improper photography and was sentenced to concurrent terms
of one year of imprisonment. He moves for a certificate of appealability (COA)
to challenge the dismissal of his 28 U.S.C. § 2254 petition.
       A COA may issue only if Nyabwa has “made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When, as herein, the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20682     Document: 00512281766     Page: 2   Date Filed: 06/20/2013

                                  No. 12-20682

district court’s denial of § 2254 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).
      Habeas applicants are required to exhaust state remedies before
proceeding in federal court unless “there is an absence of available State
corrective process” or “circumstances exist that render such process ineffective.”
See § 2254(b)(1). “The exhaustion requirement is satisfied when the substance
of the federal habeas claim has been fairly presented to the highest state court.”
Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005) (internal quotation marks
and citation omitted). The record reflects that Nyabwa satisfied the exhaustion
requirement. See Sharpe v. Buchanan, 317 U.S. 238, 238-39 (1942); Bufalino v.
Reno, 613 F.2d 568, 571 (5th Cir. 1980); McDaniel v. Sheriff of Dallas County,
445 F.2d 851, 852 (5th Cir. 1971); see also Shute v. State of Tex., 117 F.3d 233,
238 (5th Cir. 1997).
      Further, “the district court pleadings, the record, and the COA application
demonstrate that reasonable jurists could debate whether [Nyabwa] has made
a valid claim of a constitutional deprivation.” Houser v. Dretke, 395 F.3d 560,
562 (5th Cir. 2004). We express no view on the validity of Nyabwa’s claim, the
accuracy of his factual allegations, or the ultimate resolution of Nyabwa’s habeas
petition.
      A COA is GRANTED on the exhaustion issue. No further briefing is
required. IT IS ORDERED that the judgment is VACATED, and this case is
REMANDED to the district court for further proceedings. See Houser, 395 F.3d
at 562; Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). Nyabwa’s
motion for the appointment of counsel, is DENIED.



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