Horton v. Scott ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10065
USDC No. 3:94-CV-2153-R
__________________
BILLY WAYNE HORTON,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Dep't of Criminal
Justice, Institutional
Division,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Texas
____________________
(June 6, 1995)
Before KING, HIGGINBOTHAM and DeMOSS, Circuit Judges.
BY THE COURT:
Billy Wayne Horton's notice of appeal has been treated as a
request for a certificate of probable cause (CPC) pursuant to
Fed. R. App. P. 22(b). Horton exhausted his state habeas corpus
remedies with respect to the claims raised in the instant
petition subsequent to the district court's entry of judgment
dismissing his petition for failure to exhaust. See Picard v.
Conner, 404 U.S. 270, 275-78 (1971).
Therefore, Horton's motion for CPC is GRANTED, the judgment
of the district court is VACATED, and the petition is REMANDED
for consideration of the merits. See Clark v. Williams, 693 F.2d
381, 382 (5th Cir. 1982). The district court is also directed to
O R D E R
No. 95-10065
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determine whether Horton was "in custody" for the instant
burglary conviction at the time that he filed his federal
petition. See Thompson v. Collins, 981 F.2d 259, 261 (5th Cir.
1993); see also Garlotte v. Fordice, 29 F.3d 216, 217 (5th Cir.
1994), cert. granted, 115 S. Ct. 929 (1995), rev'd. 1995
WL 318633 (U.S. May 30, 1995).