               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 00-50119
                         USDC No. W-99-CV-16



STEVE ALAN MCCLURG,

                                          Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,

                                          Respondent-Appellee.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                        --------------------
                            July 10, 2000

Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Steve Alan McClurg, Texas prisoner # 581125, has moved this

court for a certificate of appealability (“COA”) to appeal the

district court’s procedural dismissal of his 28 U.S.C. § 2254

application challenging his May 1996 prison disciplinary action

and his December 1997 conviction for possession of marijuana in a

penal institution.    A COA may be issued only if the prisoner has

made a substantial showing of the denial of a constitutional

right.   § 2253(c)(2).   If the petition was dismissed on

procedural grounds, the applicant must demonstrate that “jurists

     *
        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that this opinion should not be published and is not precedent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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of reason could conclude that the District Court’s dismissal on

procedural grounds was debatable or incorrect.”    Slack v.

McDaniel, 120 S. Ct. 1595, 1604 (2000).

     Because McClurg has failed to show that reasonable jurists

would find it debatable or incorrect that the district court

erred in dismissing his § 2254 challenge to his disciplinary

conviction as time-barred, COA is DENIED on that issue.       See

Slack, 120 S. Ct. at 1604.

     However, McClurg has shown that reasonable jurists would

find the district court’s dismissal of his § 2254 challenge to

the criminal conviction for failure to exhaust state remedies to

be debatable or incorrect.    McClurg presented documentation to

the district court showing that he had exhausted his state

remedies in a habeas corpus action.    McClurg alleged in his

§ 2254 petition that he had raised the same issues in a state

habeas proceeding filed in the 52nd Judicial District Court and

that the Texas Court of Criminal Appeals had denied the petition

on October 28, 1998.   McClurg attached to his opposition to

respondent’s motion to dismiss copies of documents showing that

the habeas petition was filed on August 13, 1998, and denied on

October 28, 1998.   COA is GRANTED on the issue of exhaustion.

See Slack, 120 S. Ct. at 1604.

     Because the record does not contain the state habeas

petition, this court cannot determine whether the issues

presented in the § 2254 petition were also presented to the state

court.   The district court’s judgment is VACATED to the extent

that it dismissed McClurg’s § 2254 challenge to the December 1997
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conviction for possession of marijuana in a penal institution,

and the case is REMANDED to the district court to determine

whether McClurg presented his federal constitutional claims

regarding the criminal conviction to the state court.

     COA GRANTED IN PART, DENIED IN PART.   JUDGMENT VACATED AND
REMANDED.
