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

                                                                            FILED
                                                                        November 30, 2007
                                     No. 07-20554
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

THOMAS CHARLES BORUCH

                                                  Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, 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. 4:07-CV-1879


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Thomas Charles Boruch, Texas prisoner # 1333487, seeks a certificate of
appealability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition
without prejudice for failure to exhaust remedies, pursuant to § 2254(b) and (c).
To obtain a COA, Boruch must make “a substantial showing of the denial of a
constitutional right,” which in turn requires him to show “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   ORDER
                                  No. 07-20554

a constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      Boruch contends that reasonable jurists would find the dismissal of his
habeas petition for failure to exhaust to be error because it was based on the
incorrect factual finding that he did not first pursue a state habeas application.
He argues that he demonstrated through his postjudgment motion that he filed
a state habeas application which was denied by the Texas Court of Criminal
Appeals without written reasons on April 18, 2007. Additionally, he asserts that
he is entitled to a COA because his § 2254 petition states a valid claim for
ineffective assistance.
      Boruch is correct that the record establishes that he had previously filed
an unsuccessful state habeas application and that he exhausted his
administrative remedies prior to filing the instant § 2254 petition. He is also
correct that his petition raises facially valid ineffective-assistance claims.
Boruch has thus made the required showing, and his motion for a COA is
granted. See Slack, 529 U.S. at 484. The district court’s judgment is vacated,
and the case is remanded for further proceedings. It is noted that the petition
appears on its face to be time-barred under 28 U.S.C. § 2244(d). However,
Boruch should be given the opportunity to raise tolling arguments before the
district court.
      COA GRANTED; VACATED AND REMANDED.




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