IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-10978

LARRY HILL, 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 Northern District of Texas USDC No. 4:95-CV-437-Y - - - - - - - - - - December 17, 1997 Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Larry Hill, Texas prisoner #634663, has applied for a

certificate of probable cause (CPC) to appeal the district

court’s dismissal of his

habeas petition. He

argues that (1) he had been denied a full and fair hearing at his

trial because the trial court had excluded a supplemental offense

report; (2) he was denied a fair hearing of his case because the

trial court had improperly refused to allow the jury to hear

certain tape recordings; (3) he had been denied a full and fair

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-10978 -2-

hearing at his trial because the arrest-warrant affidavit had

been altered to create probable cause; and (4) his conviction was

obtained by use of an unduly suggestive pretrial identification

procedure.

We previously remanded to the district court its initial

grant of CPC because that court’s order doing so was filed after

the effective date of the Antiterrorism and Effective Death

Penalty Act (AEDPA), which eliminated CPC and instituted in its

place a certificate of appealability (COA). Hill v. Johnson,

(5th Cir. 1997). On remand, the district court

denied COA but did so notwithstanding the Supreme Court’s

intervening decision in Lindh v. Murphy,

(1997),

in which the Court held that the AEDPA applied only to cases

filed after the AEDPA’s effective date. Because Hill filed his

§ 2254 action before the enactment of the AEDPA, he is not

required to obtain a COA before filing an appeal but remains

subject to the prior rules requiring CPC. Green v. Johnson,

(5th Cir. 1997).

Assuming without deciding that the Supreme Court’s ruling in

Lindh made the district court’s order denying COA moot and, thus,

reinstated the district court’s initial order granting CPC, we

have carefully reviewed the record and the appellant’s filings

and conclude that, irrespective of the reinstated CPC, this court

need not address in detail the substance of the claims advanced No. 97-10978 -3-

by Hill because we agree with the district court that such claims

are without merit. Accordingly, Hill’s action is DISMISSED.

Hill’s requests for leave to proceed in forma pauperis and

for the appointment of counsel are DENIED.

DISMISSED.