     Case: 14-20436      Document: 00512978766         Page: 1    Date Filed: 03/23/2015




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


                                      No. 14-20436                                FILED
                                                                            March 23, 2015
                                                                             Lyle W. Cayce
ALFRED HENDERSON,                                                                 Clerk

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, 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. 4:13-CV-3254


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Alfred Henderson, Texas prisoner # 714885, moves for a certificate of
appealability (COA) to appeal the dismissal without prejudice for failure to
exhaust state court remedies of his 28 U.S.C. § 2254 application challenging
his conviction for robbery – bodily injury.             He also moves for leave to
supplement his COA motion. Henderson argues that he should be excused
from the exhaustion requirement of § 2254(b)(1)(A). He notes that his state


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-20436     Document: 00512978766      Page: 2    Date Filed: 03/23/2015


                                  No. 14-20436

habeas application has been pending since December 2012, and the state
courts have yet to resolve the application.
      In order to obtain a COA, Henderson must make “a substantial showing
of the denial of a constitutional right.”      28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 484 (2000). An applicant must demonstrate that
reasonable jurists would find it debatable whether the § 2254 application
states a valid claim of the denial of a constitutional right and whether the
district court was correct in its procedural ruling. Slack, 529 U.S. at 484.
      Exhaustion may be excused in exceptional circumstances, including
“when the state system inordinately and unjustifiably delays review of a
petitioner’s claims so as to impinge upon his due process rights” and when it
would be futile to seek state remedies. Deters v. Collins, 985 F.2d 789, 795-96
(5th Cir. 1993). Failure to exhaust under these circumstances, however, will
only be excused if the delay is “wholly and completely the fault of the state.”
Id. at 796. In determining whether the delay is violative of due process, the
following factors are examined: (1) the length of the delay; (2) the reasons for
the delay; (3) the petitioner’s assertion of his right; and (4) the prejudice to the
petitioner on account of the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972).
      Henderson’s state habeas application has been pending for more than
two years, which exceeds the range we have previously considered excessive.
See, e.g., Shelton v. Heard, 696 F.2d 1127, 1128-29 (5th Cir. 1983); Breazeale
v. Bradley, 582 F.2d 5, 6 (5th Cir. 1978). The record contains no explanation
for the delay and no information regarding the progress of the proceedings. In
light of the lack of evidence regarding the current state of Henderson’s state
habeas proceedings and the lack of findings regarding whether the reason for
the delay was justifiable, the district court’s procedural determination is
debatable.   See Slack, 529 U.S. at 484.        Additionally, “the district court



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                                No. 14-20436

pleadings, the record, and the COA application demonstrate that reasonable
jurists could debate whether [Henderson] has made a valid claim of a
constitutional deprivation.” Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.
2004).
      Henderson’s motion to supplement his COA application is GRANTED.
His motion for a COA is GRANTED, the district court’s judgment dismissing
the motion as untimely is VACATED, and the matter is REMANDED for
further factual development regarding whether the delay in considering his
state habeas application is justifiable and the current status of the
proceedings. See id.; Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
If the delay is not justifiable and the matter has not progressed in the state
courts, the district court shall proceed to consider the merits of the federal
habeas application.




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