               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-20932
                         Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JOSE MARIA ALCANTAR, also known as
Joe Diamond, also known as Diamond Joe,

                                           Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-94-CR-288-2
                       - - - - - - - - - -

                            May 25, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jose Maria Alcantar requests a certificate of appealability

(COA) to appeal the district court’s dismissal of his motion to

vacate an illegal sentence under 28 U.S.C. § 2255.     The motion

that Alcantar filed in the district court was entitled a

“preliminary” § 2255 motion, which does not exist, and the court

properly construed the motion as a motion to vacate.     Within his

motion, however, Alcantar requested leave to amend his pleadings

before the Government was required to respond if discovery was

     *
        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that this opinion should not be published and is not precedent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. 98-20932
                                -2-

denied.   Under FED. R. CIV. P. 15(a), a party may amend a pleading

once as a matter of course before a responsive pleading is

served.   After the district court’s ruling, Alcantar filed a

motion to alter or amend judgment under FED. R. CIV. P. 59(e) in

which he noted that he had expressed the desire to amend in his

original motion.   The district court’s denial of the Rule 59(e)

motion is reviewed for abuse of discretion.   Southern

Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th

Cir. 1993).

     Given the brief amount of time between the filing of

Alcantar’s motion and the district court’s order, the fact that

Alcantar requested the opportunity to amend his pleading, and the

fact that, under the Antiterrorism and Effective Death Penalty

Act (AEDPA), it is likely that Alcantar will not get another

opportunity to raise his claims, it was an abuse of discretion to

deny the original § 2255 motion and to deny Alcantar’s Rule 59(e)

motion without allowing him the opportunity to amend.    IT IS

ORDERED that Alcantar’s request for a COA is GRANTED and the case

is VACATED and REMANDED for further proceedings, including the

opportunity for Alcantar to amend his § 2255 motion.

     COA GRANTED; JUDGMENT VACATED; CASE REMANDED.
