IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50501 USDC No. A-97-CV-798

KENNETH 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 Western District of Texas --------------------

November 24, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Kenneth Hill, Texas state prisoner #632292, seeks a

certificate of appealability (COA) to appeal from the dismissal

of his

petition as untimely and to appeal the

denial of his underlying constitutional claims. While Hill’s COA

request was pending, Hill filed a second COA request and

accompanying brief, noting a recent district court decision

pertinent to the timeliness issue. This second request and brief

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-50501 -2-

is treated as a motion for leave to file a supplemental brief,

which is GRANTED. Fed. R. App. P. 28(j).

To obtain a COA, an applicant must make a substantial

showing of the denial of a constitutional right. See

(c)(2). 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. 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.

Hill 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,

(5th

Cir. 1999), Hill’s third state habeas petition tolled the one-

year limitation period under § 2244(d)(2). Id. at 473. Hill’s

federal habeas petition was therefore timely filed. Id.

Because the district court’s order dismissing Hill’s

petition did not address the merits of his underlying claims,

this court lacks jurisdiction to consider his request for a COA

with regard to those claims. See Sonnier,

.

Accordingly, Hill 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 VACATED, and this case

REMANDED with instructions to address the merits of Hill’s

constitutional violations.

VACATED AND REMANDED.