IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40328 Summary Calendar

DEVIN PAUL COLE,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CV-355 - - - - - - - - - - December 19, 2001 Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

Devin Paul Cole, Texas prisoner #582965, has requested a

certificate of appealability (“COA”) in order to appeal the

dismissal of his federal habeas corpus application filed pursuant

to

. He has made a substantial showing of the

denial of a constitutional right regarding whether the lack of a

separate hearing prior to the revocation of his parole in

September 1999 violated his federal due process rights. See

Morrissey v. Brewer,

(1972); see also

(c)(2).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40328 -2-

As Cole had filed a previous federal habeas corpus

application challenging his May 1999 revocation hearing, the

district court dismissed his instant constitutional claims as

repetitive. However, Cole’s instant habeas corpus application

challenged his September 1999 revocation. Accordingly, jurists

of reason would find it debatable whether the district court’s

dismissal of his constitutional claims as repetitive was correct.

See Slack v. McDaniel,

(2000). The motion for

COA is GRANTED, the district court’s judgment is VACATED, and

this case is REMANDED to the district court for consideration of

Cole’s claims pertaining to his September 1999 revocation.

Cole’s motion for appointment of counsel to argue his COA motion

is DENIED AS UNNECESSARY.

COA GRANTED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;

JUDGMENT VACATED; REMANDED.