IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-21100

HARVEY DALE ANGEL,

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 USDC No. H-98-CV-2182 --------------------

October 22, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Harvey Dale Angel, Texas prisoner # 638529, seeks a

certificate of appealability (COA) to appeal from the dismissal

of his

petition as untimely. He further seeks a

COA to appeal the denial of his underlying constitutional claims.

To obtain a COA, an applicant must make a substantial

showing of the denial of a constitutional right. See

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-21100 -2-

§ 2253(c)(2); Drinkard v. Johnson,

(5th Cir.

1996). In considering a nonconstitutional question in a COA

application, such as the limitations issue presented here, the

petitioner must first make a credible showing of error by the

district court. See Sonnier v. Johnson,

(5th Cir. 1998). Only if the petitioner succeeds in doing so

will the court consider whether he has made a substantial showing

of the denial of a constitutional right on his underlying claims.

Angel has made a credible showing that the district court

erred in dismissing his § 2254 petition as untimely. Under this

court’s recent decision in Villegas v. Johnson, F.3d (5th

Cir. Aug. 9, 1999, No. 98-10298),

, the filing of

Angel’s second petition for state habeas corpus relief served to

toll the one-year limitations period under § 2244(d)(2). Id. at

*3. As Angel filed his § 2254 petition while this second state

habeas petition was pending, his federal habeas petition was

timely. Id.

Because the district court’s order dismissing Angel’s

petition did not address the merits of his underlying claims,

however, this court lacks jurisdiction to consider his request

for a COA with regard to those claims. See Sonnier,

. Accordingly, Angel is hereby GRANTED a COA on the

question of the timeliness of his § 2254 petition, the district

court’s judgment dismissing his petition as time-barred is No. 98-21100 -3-

VACATED, and this case REMANDED with instructions to address the

merits of Angel’s constitutional violations.

VACATED AND REMANDED.