IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20669 Summary Calendar

JOHNNY DWAYNE STATEN,

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-99-CV-879 -------------------- November 2, 2000

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Texas prisoner Johnny Dwayne Staten, #682286, moves this

court for a certificate of appealability (COA) to appeal the

dismissal, without prejudice, of his

petition.

The magistrate judge dismissed Staten’s instant § 2254 petition

“as improvidently filed under the Fifth Circuit’s sanction and

bar order” in Staten v. Pruitt, No. 97-10396 (5th Cir. Apr. 15,

1998)(unpublished).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20669 - 2 -

When the district court denies federal habeas relief on

procedural grounds and does not reach the underlying

constitutional claim, “a COA should issue [if] the prisoner

shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel,

(2000).

In In re: Staten, No. 99-00034 (5th Cir. Jun. 2, 1999)

(unpublished), this court determined that the prior sanction

order relied upon by the magistrate judge to dismiss the instant

action did not bar Staten from filing a notice of appeal in a

§ 2254 proceeding. Accordingly, Staten’s motion for a COA is

GRANTED; Staten’s motion for leave to proceed in forma pauperis

on appeal is GRANTED; and the case is VACATED and REMANDED for

further proceedings. All other remaining motions and all other

requests for relief are DENIED.