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

                                                                   FILED
                                                                 January 19, 2009
                                 No. 08-20122
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

DAVID MATTHEW KURTZEMANN

                                            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-4490


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      On January 17, 1997, David Matthew Kurtzemann, Texas prisoner
# 1468815, was convicted pursuant to a guilty plea of driving while intoxicated.
He was sentenced as a third time offender to 16 years of imprisonment. His
1997 conviction was used to enhance his sentence for an October 10, 2007,
conviction of driving while intoxicated. Kurtzemann seeks a certificate of
appealability (COA) from this court to appeal the district court’s dismissal of his


      *
      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should not be published and is not precedent except under the limited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. 08-20122

28 U.S.C. § 2254 application challenging the validity of his 1997 conviction. The
district court held that Kurtzemann’s application was barred by limitations to
the extent it independently challenged his 1997 conviction. The district court
further held that Kurtzemann’s application was unexhausted to the extent it
challenged his 2007 conviction as enhanced by his 1997 conviction.
      A COA will issue only if the petitioner makes a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a habeas petition
has been dismissed on procedural grounds, the petitioner must show “that
jurists of reason would find it debatable whether the 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).
      Kurtzemann contends that the district court erred in dismissing his
habeas application in part as time barred. He argues that the limitations period
in his case should have been equitably tolled in light of his mental illness and his
actual innocence. Kurtzemann has not shown that jurists of reason would find
it debatable whether the district court’s dismissal in part of his § 2254
application as time-barred was correct. Accordingly, we deny Kurtzemann’s
motion for a COA as to that issue.
      Kurtzemann also contends that the district court erred in dismissing his
habeas application in part for failing to exhaust his state court remedies.
Kurtzemann alleges that any attempt to challenge the enhancement of his 2007
conviction based upon his 1997 conviction would have been futile because the
state courts had already rejected his challenges to his 1997 conviction.
      The record on appeal does not include the brief Kurtzemann filed in his
state habeas corpus application. It is therefore impossible to tell whether
Kurtzemann’s current arguments are substantially equivalent to Kurtzemann’s
prior habeas claims. If the Texas Court of Criminal Appeals has considered and
rejected the substance of Kurtzemann’s challenge to his 1997 conviction, it is

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                                  No. 08-20122

arguable that the futility exception to the exhaustion requirement applies in this
case. See Dilworth v. Johnson, 215 F.3d 497, 501 n.3 (5th Cir. 2000). Moreover,
although the district court may sua sponte raise a petitioner’s failure to exhaust,
Kurtzemann was not given notice and an opportunity to respond to the
exhaustion issue. See Day v. McDonough, 547 U.S. 198, 209-10 (2006); Magouirk
v. Phillips, 144 F.3d 348, 357-59 (5th Cir. 1998). Accordingly, reasonable jurists
could debate the correctness of the district court’s procedural ruling. See Slack,
529 U.S. at 484.
      The district court pleadings, the record, and the COA application do not
make clear that reasonable jurists could not debate whether Kurtzemann has
made a valid showing of a constitutional deprivation as to his underlying claims.
See Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). We therefore grant
Kurtzemann a COA to appeal the district court’s dismissal of his § 2254
application to the extent his application was dismissed as unexhausted. The
district court’s judgment dismissing Kurtzemann’s § 2254 application as
unexhausted is vacated and this matter is remanded to the district court for
further proceedings consistent with this opinion. We express no sentiment on
the ultimate outcome of the proceedings.
      COA DENIED IN PART; COA GRANTED IN PART; VACATED IN PART;
REMANDED.




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