IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20166 USDC No. H-98-CV-2966

RODNEY NORMAN ROSS, JR.,

Petitioner-Appellant,

versus

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

Respondent-Appellee.

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Appeals from the United States District Court for the Southern District of Texas

--------------------- October 21, 1999

Before JOLLY, JONES and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rodney Norman Ross, Jr., Texas prisoner #763978, moves for a

certificate of appealability (COA) to appeal the district court’s

denial of his request for in forma pauperis (IFP) status and the

dismissal of his case with prejudice. Ross contends that his

initial pleading in the district court, entitled “Application for

Leave to File Applicant’s Motion for Habeas Corpus Review in the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20166 - 2 -

Interest of Justice,” was not a

petition, but

that his pleading in case number 98-3438 was intended as his

original § 2254 petition. However, case number 98-3438 was

dismissed with prejudice on the basis that it was duplicative of

the instant case. Thus, the merits of Ross’s § 2254 petition

have not been addressed, and this case remains the sole vehicle

for pursuing those claims.

Accordingly, COA is GRANTED. The district court’s order

dismissing Ross’s case with prejudice is VACATED and this case is

REMANDED for consideration of Ross’s Application for Leave to

File Applicant’s Motion for Habeas Corpus Review in the Interest

of Justice.

Ross’ motion to proceed IFP on appeal is GRANTED.

COA AND IFP GRANTED; VACATED AND REMANDED.