                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-60935



                      DAVID DONNELL JACKSON,

                                               Petitioner-Appellant,

                              versus

                        ROBERT ARMSTRONG,

                                               Respondent-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
                         (3:01-CV-584-BN)
_________________________________________________________________
                           May 23, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges

PER CURIAM:*

     David Donnell Jackson, Mississippi prisoner # 39640, seeks a

certificate of appealability (“COA”) to appeal the district court’s

dismissal without prejudice of his 28 U.S.C. § 2254 petition for

failure to exhaust his state remedies, pursuant to 28 U.S.C. §

2254(b)(1)(A).   To obtain a COA, Jackson must make a substantial

showing of the denial of a constitutional right, which requires him

to show that “jurists of reason would find it debatable whether 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this opinion should not be published and is not precedent except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.
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); see 28 U.S.C. § 2253(c)(2).

     Jackson argues that he should not be required to exhaust

because his state habeas application remains pending and has been

unduly delayed by the Mississippi Supreme Court.             However, the

Mississippi Supreme Court clerk’s office confirms that Jackson’s

postconviction motion was denied on April 5, 2002, while the

instant appeal was pending. Because he has now exhausted his state

remedies,   COA   is   GRANTED,   the   district   court’s   dismissal   is

VACATED, and the case is REMANDED for further proceedings on the

merits.     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).

                           COA GRANTED; CASE VACATED AND REMANDED
