### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20682 Summary Calendar

COLLINS O. NYABWA, Petitioner-Appellant

v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF C RIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:12-CV-1152

Before JONES, DENNIS, and HAYNES, Circuit Judges. PER CURIAM: * Collins O. Nyabwa, form e r Texas prisoner # 1 729106, pleaded guilty to thre e c o u n t s of improper photography and was sentenced to concurrent terms of one year of imprisonment. He moves for a certificate of appealability (COA) to challenge the dismissal of his 28 U.S.C. § 2254 petition. A COA may issue o nly i f Nyabwa has “ made a s ubstantial showing of the denial of a c onstitutional right.” 28 U.S.C. § 2253(c)(2). When, as h erein, the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 20, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-20682 Document: 00512281766 Page: 1 Date Filed: 06/20/2013No. 12-20682

district court’s d enial o f § 2254 relief is based on pr o c e d u r a l g r ounds, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable wh e t h er the petition s t ates a valid claim of the denial of a
con s t i t u tional right and that jurists of reason would find it debatable whether the distric t c ourt was correct in its procedural ruling.” S lack v . McDaniel , 529 U.S. 473, 484 (2000). Habeas a pplicants a re required t o exhaust state remedie s b e f ore proceeding in federal court unless “there is an absence o f available State corrective process” or “circumstances exist that render such process ineffective.” See § 2254(b)(1). “The e xhaustion requirement i s satisfied when the s ubstance of t he f ederal h abeas claim has been fairly presented to the highest state court.” Morris v. Dretke , 413 F.3d 484, 491 (5th Cir. 2005) (intern a l quotation marks and citation omitted). The record reflects that Nyabwa satisfied the exhaustion requirement. See Sharpe v. Buchanan , 3 17 U.S. 238, 2 38-39 (1942); Bufalino v. Reno , 613 F.2d 568, 571 (5th Cir. 1980); McDaniel v. Sh e r if f of D allas County , 445 F.2d 851, 852 (5th Cir. 1971); see also Shute v. State of Tex. , 117 F.3d 233, 238 (5th Cir. 1997). Further, “the district court pleadings, t he record, and the COA application demonstrate that r easonable jurists c ould debate whether [ Nyabwa] has made

a valid c l aim o f a constitutional deprivation.” H o u ser v . Dretke , 395 F.3d 560, 562 (5th Cir. 2004). We express n o view on the validity o f Nyabwa’s claim, the accuracy of his factual allegations, or the ultimate resolution o f Ny ab w a ’ s h ab e a s petition. A COA is GRANTED on the e xhausti o n issue. No further b riefing is required. IT IS O RDERED that the judgment is V ACATED, and this case is REMANDED to the district court for further proceedings. See Houser , 395 F.3d at 562; Whitehead v. Johnson , 157 F.3d 384, 388 (5th Cir. 1998). Nyabwa’s motion for the appointment of counsel, is DENIED.

2 Case: 12-20682 Document: 00512281766 Page: 2 Date Filed: 06/20/2013