McKinnely v. Johnson

*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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20224
USDC No. H-00-CV-345
Summary Calendar
EVANS WILLIAM MCKINNELY,
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 Southern District of Texas
June 26, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Evans William McKinnely, Texas prisoner # 554193, seeks a
certificate of appealability (“COA”) to appeal the district court’s
dismissal without prejudice of his petition for habeas corpus filed
pursuant to 28 U.S.C. § 2254. McKinnely’s federal petition alleged
that a state habeas application had been filed on October 12, 1999,
but that no decision had been made. The district court sua sponte
dismissed the petition for failure to exhaust state remedies.

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2
McKinnely has provided this court with evidence that his state
application for habeas relief has recently been denied by the Texas
Court of Criminal Appeals. Ordinarily, this court will not enlarge
the record on appeal with evidence that was not before the district
court. See Trinity Indus., Inc. v. Martin, 963 F.2d 795, 799 (5th
Cir. 1992). Under these limited circumstances, we find that the
interests of justice and judicial economy are best served by
granting the COA, VACATING the dismissal and REMANDING for
reconsideration of McKinnely’s petition in light of the new
evidence.
COA GRANTED; VACATED and REMANDED.

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