Isaias Santos, III v. Lorie Davis, Director

Case: 16-20304 Document: 00514559875 Page: 1 Date Filed: 07/18/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20304 FILED
Summary Calendar July 18, 2018
Lyle W. Cayce
Clerk
ISAIAS SANTOS, III,
Petitioner-Appellant
v.
LORIE DAVIS, 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. 4:16-CV-1003
Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
Isaias Santos, III, Texas prisoner # 1855998, appeals the dismissal of his
28 U.S.C. § 2254 application, which the district court held was unexhausted
due to the pendency of his state habeas corpus application. We review that
dismissal de novo. Emerson v. Johnson, 243 F.3d 931, 932 (5th Cir. 2001).
Prior to that dismissal, Santos advised the district court that his state habeas
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20304 Document: 00514559875 Page: 2 Date Filed: 07/18/2018
No. 16-20304
corpus application had been denied and was no longer pending. As conceded
by the respondent, Santos exhausted his claims properly for purposes of
§ 2254(b)(1)(A) before the district court dismissed them as unexhausted. A
remand is appropriate so that the district court can consider Santos’s § 2254
application in the first instance with the benefit of the state court’s denial of
his state habeas corpus application.
Accordingly, and with the agreement of the State, we VACATE the
district court’s judgment and REMAND for further proceedings. We express
no opinion on the ultimate disposition of Santos’s § 2254 application.
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