IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20751

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODERICK ANTHONY RICE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC Nos. H-99-CV-1297, H-96-CR-27-1 -------------------- December 27, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Roderick Rice (federal prisoner #70997-079) has applied for

a certificate of appealability (COA) to appeal the district

court’s dismissal of his

motion under Rule 4(b)

of the Rules Governing § 2255 Proceedings. In his § 2255 motion,

Rice alleged, among other things, that his guilty plea was

involuntary. He also filed a motion requesting leave to amend

his § 2255 motion within 90 days. Because Rice’s guilty-plea

hearing had not yet been transcribed, it was not plain from the

face of his § 2255 motion and the record that he was “not

entitled to relief in the district court.” See Rule 4(b) of 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20751 -2-

Rules Governing Section 2255 Proceedings. Moreover, because the

Government had not yet filed a responsive pleading in the case,

Rice was entitled to amend his § 2255 motion “once as a matter of

course.” See Fed. R. Civ. P. 15(a).

Rice has made a credible showing that the district court

erred in summarily dismissing his § 2255 motion under Rule 4(b)

without first affording him an opportunity to amend. See Murphy

v. Johnson,

(5th Cir. 1997); see also Pena v.

United States,

, 987 & n.3 (5th Cir. 1998)(stating

that a district court generally errs is dismissing or denying a

pro se party’s pleadings without affording the party an

opportunity to amend). Accordingly, we GRANT Rice’s COA

application, VACATE the district court’s order of dismissal, and

REMAND the case to the district court for further proceedings

consistent with this opinion. See Dickinson v. Wainwright,

(5th Cir. Unit B 1980).

COA GRANTED; VACATED AND REMANDED.