UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 98-11151 Summary Calendar _______________________

CLYDE ROSS,

Petitioner-Appellee,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellant.

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Appeal from the United States District Court for the Northern District of Texas (5:97-CV-221) _________________________________________________________________

September 2, 1999

Before JONES, BARKSDALE, and DENNIS, Circuit Judges.*

PER CURIAM:

Appellee Clyde Ross was convicted of attempted capital

murder and sentenced to 99 years imprisonment in 1981. After

exhausting his state court remedies, Ross filed this section 2254

petition alleging, inter alia, that appellate counsel provided

constitutionally deficient representation by failing to inform him

that his conviction had been affirmed on direct appeal and that he

had a right to seek discretionary review with the Texas Court of

Criminal Appeals. The district court determined that Ross was

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. entitled to file an out-of-time petition for discretionary review

and dismissed his section 2254 petition without prejudice. The

state of Texas has filed a timely appeal. We vacate and remand.

The state argues that there is no proof in the state and

federal court records of Ross’s central allegation, i.e., that his

attorney failed to inform him that his conviction had been affirmed

on direct appeal and that the timetable had begun running for a

petition for discretionary review. Instead, the district court

assumed this fact in ruling that Ross was entitled to relief.

Further, the state argues that the relief Ross seeks is Teague-

barred, because he seeks recognition of a new constitutional rule

on habeas review. Teague v. Lane,

(1989).

There may be an interesting constitutional issue in this

case, if the facts are as Ross alleges and if the remedy he seeks

is not barred by Teague. According to the Supreme Court, Ross had

no right to counsel in the preparation of a petition for

discretionary review. Ross v. Moffitt,

(1974). This

court, in a case where the state waived the Teague bar, has held,

however, that a petitioner does have the right to counsel if the

state requests and receives a grant of discretionary review in the

Texas court of criminal appeals. Blankenship v. Johnson,

(5th Cir. 1997) (but Blankenship expressly declined to rule on

the converse factual situation, which is before us). Adding to the

complexity, the U.S. Supreme Court has just held that a prisoner

must exhaust remedies in state court through a discretionary review

procedure before going into federal court. O’Sullivan v. Boerckel,

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(1999). Whether this decision has some

implication for the right to counsel, which may or may not

implicate a separate Teague bar, is not clear.

Because the district court’s rulings on the critical

factual and Teague issues are absent from the record, we vacate and

remand for it to reconsider this petition.

VACATED and REMANDED.

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