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

                                                 FILED
                                                                         November 17, 2009

                                       No. 08-50016                    Charles R. Fulbruge III
                                                                               Clerk

CHARLTON REED TIPTON,

                                                   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 Western District of Texas
                                   6:06-cv-313


Before JONES, Chief Judge, and GARZA and DeMOSS, Circuit Judges.
PER CURIAM:*
       Appellant Charlton Reed Tipton appeals the denial of his federal
application for habeas corpus challenging his state conviction and sentence for
aggravated sexual assault. The district court denied ten of his fourteen claims
for relief on the grounds that Tipton failed to exhaust his state remedies and the
claims would be procedurally barred under Texas’s abuse of the writ doctrine.
Relying on the Texas Court of Criminal Appeal’s denial of Tipton’s state habeas


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50016

application, the district court denied his other four claims on the merits. After
the district court denied Tipton’s application, the Texas Court of Criminal
Appeals withdrew its order denying Tipton habeas relief and dismissed his
habeas application on jurisdictional grounds. Tipton’s appeal raises the issue of
whether the dismissal of his state habeas case on procedural grounds requires
us to vacate the district court’s opinion relying on the withdrawn denial of relief.
For the following reasons, we VACATE the district court’s denial of habeas
corpus relief and REMAND for further proceedings.
                                              I.
       Tipton was convicted of aggravated sexual assault of a child and sentenced
to life imprisonment.      After the trial, Tipton filed an appeal arguing that the
trial court erroneously admitted evidence and that his trial counsel was
ineffective.   The court of appeals rejected his arguments and affirmed his
conviction and sentence. The Texas Court of Criminal Appeals (“TCCA”) later
denied his petition for discretionary review.
       However, before the TCCA issued its mandate, Tipton filed a state
application for habeas corpus relief. In the state application, Tipton asserted
claims of ineffective assistance of counsel. The state trial court found that there
were no controverted facts regarding Tipton’s application and recommended that
it be denied. The TCCA disagreed and remanded the case to the trial court,
instructing the trial court to obtain affidavits or hold an evidentiary hearing.
The court obtained affidavits from Tipton and his counsel and made factual
findings. Based on the findings of the trial court, the TCCA denied Tipton’s
state habeas corpus application without written order.1
       After the TCCA’s denial, Tipton filed a federal habeas corpus application
under 28 U.S.C. § 2254. In his application, Tipton raised fourteen ineffective


       1
        The TCCA is the highest court in Texas state court for purposes of exhaustion of state
court remedies. Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985).

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assistance of counsel claims—four he raised in the state court and ten he raised
for the first time before the district court. The magistrate judge determined that
Tipton had exhausted his state remedies regarding the claims he had raised in
state court. However, as to the claims Tipton had failed to raise in state court,
the magistrate judge found that Tipton had not exhausted his state remedies
and the claims were procedurally barred. He also found that Tipton had not
shown that the state court’s denial of the exhausted claims was based on an
unreasonable application of federal law or an unreasonable determination of
fact. In the alternative, he found that those claims were without merit because
Tipton had not shown prejudice from his counsel’s alleged deficiencies. The
magistrate judge recommended that Tipton’s habeas application be dismissed.
      Tipton objected to the report and recommendation, arguing that he had
received ineffective assistance of counsel regarding his exhausted claims and
requesting that his case be held in abeyance until he exhausted his remaining
claims. The district court rejected Tipton’s request to hold the case in abeyance,
ruling that Tipton’s unexhausted claims were procedurally barred because he
would be prevented from raising them in a state habeas corpus application
pursuant to Texas’s abuse of the writ doctrine. The district court ruled that
Tipton had not shown that the state court’s denial of his exhausted claims was
based on an unreasonable application of federal law or an unreasonable
determination of fact.      It adopted the magistrate judge’s report and
recommendation and denied Tipton’s habeas application.
      After the district court denied Tipton’s application, Tipton informed the
TCCA that he had filed his state habeas application prior to the issuance of the
mandate on his direct appeal, and he requested that the denial of his state
habeas application be modified to a dismissal for lack of jurisdiction. The TCCA
subsequently reconsidered the denial of Tipton’s state habeas application. Upon
reconsideration, the TCCA ruled that because Tipton’s state habeas corpus

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application was filed while his direct appeal was still pending, the TCCA was
without jurisdiction to decide Tipton’s habeas application. Accordingly, the
TCCA withdrew its denial of Tipton’s state habeas application, and it dismissed
the application without prejudice.
       Tipton then sought a certificate of appealability (“COA”) from this court
to challenge the district court’s denial of federal habeas relief. We granted
Tipton a COA on the issue of “whether the withdrawal of the denial of his state
habeas corpus application requires the vacating of the denial of his § 2254
application.”
                                            II.
       To determine whether we must vacate the district court’s denial of habeas
relief, we must first decide how the TCCA’s dismissal of Tipton’s state habeas
application on jurisdictional grounds and the court’s withdrawal of the denial on
the merits affects Tipton’s federal habeas application.2 Because Tipton’s state
application was dismissed on jurisdictional grounds, Tipton’s habeas claims are
not procedurally barred and are unexhausted. Further, the TCCA’s denial on
the merits is void and not entitled to deference. Accordingly, Tipton’s claims
could not be denied because he failed to show that the TCCA’s denial was based
on an unreasonable application of federal law or an unreasonable determination
of fact.
                                            A.
       As to the claims Tipton raised for the first time before the district court,
the district court determined that the claims were unexhausted and procedurally
barred under Texas’s abuse of the writ doctrine. Under the abuse of the writ
doctrine, a subsequent application for habeas corpus relief filed after final


       2
        We do not find it necessary for this court to decide at this time whether this case
should be reviewed for plain error or reviewed de novo because this case should be vacated
under either standard

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disposition   of   an   initial application   may   not   be   considered   on   the
merits—meaning the subsequent application is procedurally barred—unless the
      subsequent application . . . contains sufficient specific facts
      establishing that: (1) the current claims and issues have not been
      and could not have been presented previously in an original
      application or in a previously considered application filed under this
      article because the factual or legal basis for the claim was
      unavailable on the date the applicant filed the previous application;
      or (2) by a preponderance of the evidence, but for a violation of the
      United States Constitution no rational juror could have found the
      applicant guilty beyond a reasonable doubt.

T EX. C ODE C RIM. P ROC. A NN. art. 11.07, § 4(a) (Vernon 2005). A final disposition
only occurs when there is a denial of the application on the merits or “a
determination that the merits of the applicant’s claims can never be decided.”
Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997). Texas’s abuse of
the writ doctrine does not bar a subsequent application if the initial application
was filed before the state court acquired jurisdiction. See id. Here, Tipton
prematurely filed his state habeas application, and the TCCA dismissed the
application on jurisdictional grounds, not on the merits. Ex parte Tipton, No.
WR-60,395-02, 2008 Tex. Crim. App. Unpub. LEXIS 319, at *1 (Apr. 30, 2008).
Because Tipton’s state habeas application was dismissed on jurisdictional
grounds, Texas’s abuse of the writ doctrine would not bar Tipton from filing a
subsequent habeas application in state court. Accordingly, Tipton’s habeas
claims are not procedurally barred.       Because the district court held to the
contrary, its judgment must be vacated.
                                         B.
      The district court found that Tipton exhausted four of his fourteen claims
for habeas relief. An applicant requesting habeas relief under 28 U.S.C. § 2254
is required to exhaust all claims in state court before seeking federal habeas
relief. Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). “The exhaustion


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requirement is satisfied when the substance of the federal habeas claim has been
fairly presented to the highest state court.” Id. The substance of a claim is fairly
presented only when the applicant presented his claims to the state court “in a
procedurally proper manner according to the rules of the state court[].” Id.
(quotations omitted).
      Here, Tipton failed to present his claims to the TCCA in a proper
procedural manner because he filed his state habeas application before the state
court acquired jurisdiction. See Ex parte Tipton, 2008 Tex. Crim. App. Unpub.
LEXIS 319, at *1. Accordingly, the TCCA was denied a fair opportunity to
consider Tipton’s claims, and thus, all of his claims remain unexhausted. The
district court’s finding to the contrary is error and the entire judgment must be
vacated.
                                        C.
      Further, to the extent the district court denied Tipton’s “exhausted claims”
on the merits, the district court’s judgment must be vacated. The district court
held that the because the TCCA denied Tipton habeas relief on the merits,
Tipton’s failure to prove that the TCCA’s decision was based on an unreasonable
application of federal law or an unreasonable determination of fact rendered his
application meritless.
      As discussed, the TCCA subsequently withdrew its decision denying
Tipton habeas relief on the merits because it found that the court lacked
jurisdiction to consider Tipton’s application.      As the TCCA did not have
jurisdiction to consider Tipton’s application, the TCCA’s original judgment
purporting to deny the application on the merits was void ab initio. See Nix v.
State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). “A void judgment is a nullity
from the beginning, and is attended by none of the consequences of a valid
judgment. It is entitled to no respect whatsoever because it does not affect,
impair, or create legal rights.” Ex Parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim.

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App. 2001). Accordingly, the district court was in error in relying on the TCCA’s
void judgment, and its judgment must be vacated.
                                             III.
       The State agrees that we must vacate the district court’s denial of Tipton’s
federal habeas application to extent the district court relied upon the TCCA’s
denial of Tipton’s state habeas application. However, the State maintains that
we should affirm the district court’s denial in part on the alternative ground that
Tipton did not sufficiently allege that he was prejudiced by his counsel’s deficient
performance. For the reasons articulated above, we find the district court was
in error and the entire judgment must be vacated.
       In light of the TCCA’s dismissal of Tipton’s state habeas application, we
remand to the district court to consider whether it should (1) dismiss the case
without prejudice in order to permit Tipton to exhaust his state remedies, (2)
deny Tipton’s application on the merits, or (3) issue a stay and hold the case in
abeyance under Rhines v. Weber, 544 U.S. 269 (2005).3
       VACATED and REMANDED.




       3
         In their briefs, the parties dispute whether the district court on remand should issue
a stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005). They agree, however, that
the district court should decide the issue in the first instance. Because our jurisdiction is
limited to those issues listed in the COA, we express no opinion on the question of whether a
stay and abeyance is appropriate in this case under Rhines. See Lackey v. Johnson, 116 F.3d
149, 151 (5th Cir. 1997) (“COAs are granted on an issue-by-issue basis, thereby limiting
appellate review to those issues alone.”).

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