     Case: 10-20426 Document: 00511435647 Page: 1 Date Filed: 04/05/2011




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

                                                 FILED
                                                                             April 5, 2011
                                     No. 10-20426
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

LAMAR BURKS,

                                                   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. 4:10-CV-1809


Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Lamar Burks, Texas prisoner # 1011723, seeks a certificate of
appealability (COA).        He seeks to appeal the district court’s denial of his
application for a writ of habeas corpus ad testificandum for failure to exhaust
state remedies.      Burks also requests the appointment of counsel, an order
requiring his appearance before the district court, and an expedited ruling in
this matter.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                   No. 10-20426

      The district court correctly construed Burks’s writ as a 28 U.S.C. § 2254
petition. See Kutzner v. Montgomery Cnty., 303 F.3d 339, 341 (5th Cir. 2002).
Burks must therefore obtain a COA to appeal the district court’s denial of his
writ. See 28 U.S.C. § 2253(c)(1). A COA may issue only if Burks has “made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). When,
as herein, the district court’s denial of § 2254 relief is based on procedural
grounds without analysis of the underlying constitutional claims, “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). Although the record does not reflect that Burks presented
his instant claims to the state’s highest court on direct appeal, the record shows
that Burks filed a state habeas application in 2003. Despite the passage of seven
years, there is no indication that the state trial court has acted on that
application. See Burks v. Harris Cnty. Dist. Clerk, No. WR-72, 881-02, 2010 WL
2617982, at *1 (Tex. Crim. App. June 30, 2010). Jurists of reason could thus
debate whether “circumstances exist that render [the available State corrective
process] ineffective to protect the rights of the applicant.” § 2254(b)(1)(B)(ii); see
Dickey v. Hargett, 979 F.2d 1533 (5th Cir. 1992); Breazeale v. Bradley, 582 F.2d
5, 6 (5th Cir. 1978).    In addition, because the district court raised lack of
exhaustion sua sponte, prior to service on the State, and without notice to Burks

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                                   No. 10-20426

or the benefit of a complete state court record, it is unclear, without the state
record, whether the claims raised in Burks’s instant writ were raised in his state
habeas application in 2003. Cf. Day v. McDonough, 547 U.S. 198, 209-11 (2006)
(holding that, as with exhaustion, district court may sua sponte raise time bar
issue and dismiss claim, after providing parties with notice and opportunity to
respond); Magouirk v. Phillips, 144 F.3d 348, 357-59 (5th Cir. 1998) (observing
that courts may sua sponte raise exhaustion issue).
      The COA, however, inquiry does not end here. In order for a COA to issue,
Burks must show not only that reasonable jurists could debate whether the
district court was correct in its procedural ruling but also that reasonable jurists
could find it debatable that the petition states “a valid claim of the denial of a
constitutional right.” See Slack, 529 U.S. at 484. When the petitioner has stated
a debatable issue regarding the correctness of the district court’s procedural
ruling, a COA should issue if either “the district court pleadings, the record, and
the COA application demonstrate that reasonable jurists could debate whether
the petitioner has made a valid claim of a constitutional deprivation,” or if those
materials are unclear or incomplete. Houser v. Dretke, 395 F.3d 560, 562 (5th
Cir. 2004).
      At least one claim of constitutional deprivation is discernible from the
record, specifically Burks’s claim that certain officials knowingly offered perjured
testimony to obtain his indictment and conviction. See Kutzner v. Johnson, 242
F.3d 605, 608-09 (5th Cir. 2001). We express no view on the validity of Burks’s
claim, the accuracy of his factual allegations, or the ultimate resolution of
Burks’s habeas petition and observe only that reasonable jurists could debate
whether Burks has made a valid claim of a constitutional deprivation. See
Houser, 395 F.3d at 562.
      A COA is GRANTED. Burks’s motion for the appointment of counsel, an
order requiring his appearance before the district court, and an expedited
hearing are DENIED.        IT IS FURTHER ORDERED that the judgment is

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                                 No. 10-20426

VACATED, and this case is REMANDED to the district court for further
proceedings consistent with this opinion.       See Houser, 395 F.3d at 562;
Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998) (stating that, in
appropriate cases, this court may grant COA, vacate judgment, and remand
without requiring further briefing).




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