IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20427 Summary Calendar

IVO NABELEK,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CV-4181 -------------------- January 30, 2003

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Ivo Nabelek was convicted of aggravated sexual assault of a

child and possession of child pornography in 1994. He appeals

the district court’s dismissal of his

petition

for failure to exhaust and the denial of his FED. R. CIV. P. 59(e)

motion seeking the reinstatement of his case.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-20427 -2-

Because the district court dismissed Nabelek’s petition on

procedural grounds, to obtain a certificate of appealability

(“COA”) Nabelek must show that “jurists of reason would find it

debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel,

(2000).

In light of the information the district court possessed at the

time it entered the order dismissing Nabelek’s petition, Nabelek

cannot make the showing required to obtain a COA.

Nabelek also seeks a COA to appeal the district court’s

denial of his Rule 59(e) motion in which he sought reinstatement

of his case due to the exhaustion of his state postconviction

application. Because Nabelek did not delay in notifying the

district court of the exhaustion of his state court remedies and

because his remedies were, in fact, exhausted at the time the

district court dismissed Nabelek’s

petition,

the district court abused its discretion in denying Nabelek’s

Rule 59(e) motion. See Fletcher v. Apfel,

(5th Cir. 2000); St. Paul Mercury Ins. Co. v. Fair Grounds Corp.,

(5th Cir. 1997).

With regard to this issue, Nabelek has shown that reasonable

jurists could debate whether the district court was correct in

denying his Rule 59(e) motion. See Slack,

.

Furthermore, reasonable jurists could debate whether Nabelek’s

claims of ineffective assistance of counsel constitute valid

claims of the denial of a constitutional right. See

No. 02-20427 -3-

Therefore COA is granted. The district court’s order denying

Nabelek’s Rule 59(e) motion is vacated and the case is remanded.

COA DENIED IN PART AND GRANTED IN PART; VACATED IN PART AND

REMANDED.