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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10194
__________________
JEFFERY EUGENE TUCKER,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
______________________________________________
Appeal from the United States District Court for the
Northern District of Texas
______________________________________________
(October 4, 1995)
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Jeffery Eugene Tucker, a Texas death row inmate, appeals the
district court's interlocutory order that appoints counsel to
represent him but limits counsel's representation to issues that
have been exhausted in state court. We dismiss this habeas
proceeding without prejudice to allow Tucker to exhaust his state
habeas remedies. Further, we relieve counsel of further obligation
in this federal proceeding.

I.
PROCEDURAL HISTORY
On November 8, 1994, Tucker filed a motion for appointment of
counsel in federal district court pursuant to 21 U.S.C. §
848(q)(4)(B) and McFarland v. Scott, __ U.S. __, 114 S.Ct. 2568
(1994). On February 7, 1995, the district court granted the
motion, appointing Richard Burr of the Texas Resource Center to
represent Tucker. However, it also "concluded that the scope of
work to be performed for Tucker by the attorney to be appointed by
this court should be limited to the preparation for, filing in, and
pursuit through this court of an application for writ of habeas
corpus that asserts only grounds for relief that were exhausted
through the state court in connection with Tucker's direct appeal
in state court."
The district court found that the order involved a controlling
question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the litigation.
See 28 U.S.C. § 1292(b). This Court then granted Tucker's petition
for permission to appeal. See Rule 5 of the Federal Rules of
Appellate Procedure.
II.
EXCUSAL FOR EXHAUSTION OF STATE REMEDIES
Initially, Tucker argued that the district court's holding
that counsel's scope of representation must be limited to exhausted
issues was erroneous. Citing McFarland, Tucker contended that
counsel appointed pursuant to § 848(q)(4)(B) must be permitted to
develop unexhausted claims during the federal habeas corpus
proceedings when the state courts do not appoint counsel in the
2

state habeas proceedings. Subsequent to the filing of Tucker's
brief, this Court decided In Re Joiner, 58 F.3d 143 (5th Cir.
1995). In that case, relying on Sterling v. Scott, 57 F.3d 451
(5th Cir.), petition for cert. filed, (U.S. Aug. 21, 1995) (No. 95-
5645), we held that a petitioner had "no right to the assistance of
federally appointed counsel or experts to exhaust state remedies."
Id. at 144. We also declined to accept Joiner's alternative
argument that, because the state refused to appoint habeas counsel,
he was excused from exhausting state remedies. Accordingly,
Tucker's argument that he is excused from exhausting his state
remedies is precluded by our opinion in Joiner.
III. DISMISSAL WITHOUT PREJUDICE
Recently, the 74th Texas Legislature enacted Senate Bill 440,
which provides that certain indigent applicants are entitled to
appointed counsel to pursue an application for habeas corpus relief
pursuant to Article 11.071 of the Texas Code of Criminal Procedure.
Act of May 24, 1995, ch. 319, § 1, 1995 Tex. Sess. Law Serv. 2764
(effective Sept. 1, 1995). It is apparent that Tucker is eligible
to have appointed counsel in a state habeas corpus proceeding under
the newly enacted statute. In light of the enactment of Senate
Bill 440, this Court requested the parties to respond to its effect
on the instant proceedings and, further, to express their views
regarding the possibility of a dismissal without prejudice to allow
Tucker to seek appointed counsel under the newly enacted statute so
that he might exhaust his state remedies. Both parties agree that
this appeal should be dismissed without prejudice so that Tucker
may properly exhaust his state remedies.
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Allowing Tucker to return to state court and exhaust his
remedies will further the "principles of comity, of cooperation and
of rapport between the two sovereigns." State of Texas v. Payton,
390 F.2d 261, 270 (5th Cir. 1968). Moreover, it is well
established that the state courts are the proper forum for
developing the facts underlying a petitioner's constitutional
claims. See Hart v. Estelle, 634 F.2d 987, 989 (5th Cir. 1981).
Accordingly, this habeas proceeding is DISMISSED WITHOUT
PREJUDICE to either Tucker's right to file a future petition for
habeas relief in federal court or seek appointment of counsel under
McFarland. Further, Richard Burr, as counsel for Tucker, is
relieved of further obligations in connection with his appointment
in the instant federal court proceedings.
4