               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 99-40365
                       USDC No. 1:98-CV-1669


BURL LAMAR VARNER,

                                          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 Eastern District of Texas
                       --------------------

                          November 23, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Burl Lamar Varner, Texas prisoner # 167890, seeks a

certificate of appealability (COA) to appeal the district court’s

denial of his motion for relief from the denial of his 28 U.S.C.

§ 2254 habeas petition.   To obtain a COA, an applicant must make

a substantial showing of the denial of a constitutional right.

See 28 U.S.C. § 2253(c)(2).   Because the habeas petition was

dismissed on limitations grounds, the petitioner must first make

a credible showing that the district court erred.      Sonnier v.

Johnson, 161 F.3d 941, 943-44 (5th Cir. 1998).   When a district

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that this opinion should not be published and is not precedent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

court denies a COA on a nonconstitutional issue only, this court

may grant a COA on the applicant’s “credible showing” of district

court error alone if the court has “any doubt about issuing a

COA” as to the second prong.    Whitehead v. Johnson, 157 F.3d 384,

386, 388 (5th Cir. 1998).    The denial of Varner’s motion, brought

under FED. R. CIV. P. 60(b), is reviewed for abuse of discretion.

United States v. Rich, 141 F.3d 550, 554 (5th Cir. 1998), cert.

denied, 119 S. Ct. 1156 (1999).

     Varner has made a credible showing that the district court

abused its discretion in denying his Rule 60(b) motion.     Varner’s

state habeas application was pending before the enactment date of

the Antiterrorism and Effective Death Penalty Act (AEDPA) and was

denied in August 1997.    Under 28 U.S.C. § 2244(d)(2), the one-

year limitations period is tolled while a state habeas

application is pending.    Texas law requires that an application

for habeas relief first be transferred to the trial court for

findings of fact and to hold a hearing if factual findings are in

dispute.   TEX. CRIM. P. CODE ANN. art. 11.07 § 3 (West 1999).   The

Texas Court of Criminal Appeals then makes a final     determination

whether to grant relief.    Tex. Crim. P. Code Ann. art. 11.07 § 5

(West 1999).   Documents in the record show that Varner filed a

habeas petition in the trial court on October 7, 1994, that the

trial court transferred it to the Texas Court of Criminal Appeals

on June 19, 1997, and that it was denied on August 13, 1997.

Varner filed his federal petition in June 1998, within one year

of the denial of state habeas relief by the Texas Court of

Criminal Appeals.   As a result of the tolling provisions of
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                               -3-

§ 2244(d)(2), Varner’s federal habeas petition was filed in a

timely manner.

     As a result, COA is GRANTED and the case is VACATED AND

REMANDED for further proceedings in accordance with this opinion.

This order does not preclude a finding that Varner’s federal

habeas petition, filed over 30 years after his conviction became

final, is a “delayed petition” under Rule 9(a) of the Rules

Governing Section 2254 Proceedings.

     COA GRANTED; VACATED AND REMANDED.
