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Burrell v. Johnson
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 97-41109 USDC No. 6:97-CV-617
CLYDE J. BURRELL,
Petitioner-Appellant, versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------- Appeal from the United States District Court for the Eastern District of Texas --------------------- July 21, 1998 Before JOLLY, DAVIS and JONES, Circuit Judges.
BY THE COURT:
Clyde J. Burrell, Texas inmate #689253, seeks a certificate of appealability (COA) to appeal the dismissal of his habeas petition, a dismissal based upon Burrell’s failure to exhaust his state-court remedies. IT IS ORDERED that COA is GRANTED and the case is VACATED AND REMANDED for further proceedings. Clark v. Williams, 693 F.2d 381, 382 (5th Cir. 1982).
The Texas courts will not entertain a habeas challenge such as Burrell’s which challenges thirteen prison disciplinary proceedings. See Ex parte Palomo, 759 S.W.2d 671, 674 (Tex. Crim. App. 1988); Ex parte Brager, 704 S.W.2d 46, 46 (Tex. Crim.
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App. 1986). Burrell argues that he sufficiently exhausted his administrative remedies through the prison grievance system and that this is sufficient exhaustion. The district court’s dismissal relied exclusively on the lack of exhaustion through the presentation of the claims in state court. On remand, the district court should determine whether Burrell’s habeas challenge to thirteen disciplinary proceedings has been exhausted through the prison grievance system and if so, whether the challenge has merit.