IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40814 Summary Calendar

CHARLES EUGENE POWERS,

Petitioner-Appellant,

versus

DAVID STACKS, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:99-CV-71 -------------------- March 17, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Charles Eugene Powers, Texas state prisoner # 55899,

requests a certificate of appealability (COA) to appeal the

district court’s dismissal of his

federal habeas

petition as barred by the one-year statute of limitations set

forth in

(d). Powers argues that the district

court erred in dismissing his § 2254 petition as time-barred.

Because Powers’s habeas petition was dismissed on limitations

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40814 -2-

grounds, he must first make a credible showing that the district

court erred in dismissing the petition on limitations grounds.

Sonnier v. Johnson,

(5th Cir. 1998).

In his § 2254 petition, Powers attacked, among others, the

judgment of conviction in cause no. F-93-0355-B. As the district

court acknowledged, on or about February 17, 1999, the Texas

Court of Criminal Appeals vacated Powers’s conviction for

burglary of a habitation in cause no. F-93-0355-B. We have

reviewed Powers’s state court judgment adjudicating guilt

following mandate, dated July 16, 1999, in cause no. F-93-0355-B,

in which Powers was sentenced to a five-year term of imprisonment

for burglary of a building. To the extent that Powers challenged

his judgment in cause no. F-93-0355-B in his § 2254 petition,

Powers has made a credible showing that the district court erred

in dismissing the petition on limitations grounds. Accordingly,

COA is GRANTED.

To the extent that Powers’s § 2254 petition attacked the

judgment in cause no. F-93-0355-B, the § 2254 petition was

premature. See § 2254(b)(1)(A). Powers’s § 2254 claim that his

thirty-year sentence in cause no. F-93-0355-B exceeded the

statutory maximum for the offense was rendered moot by his

resentencing to a five-year term of imprisonment. Therefore, as

to cause no. F-93-0355-B, the judgment of the district court

dismissing Powers’s § 2254 petition is AFFIRMED on the alternate

grounds that his claim that the thirty-year sentence exceeded the

statutory maximum is moot and that the § 2254 petition is

premature. No. 99-40814 -3-

Powers argues that the limitation period should be equitably

tolled because the Texas state courts mishandled his state habeas

applications and delayed ruling on them. Powers has not shown

“rare and exceptional circumstances” warranting the application

of the doctrine of equitable tolling. See Ott v. Johnson,

(5th Cir. 1999); Felder v. Johnson, ___ F.3d ___

(5th Cir. Feb. 9, 2000, No. 98-21050),

.

Therefore, to the extent that Powers challenged convictions other

than that in cause no. F-93-0355-B, the § 2254 petition was

untimely, and the judgment of the district court dismissing the

petition as to these convictions on limitations grounds is

AFFIRMED.

Powers’s motion for the appointment of appellate counsel is

DENIED.

COA GRANTED; AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL

DENIED.