               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-40173
                       USDC No. 5:97-CV-344



KENNETH W. LEWIS,

                                           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
                       --------------------

                        September 13, 1999

Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     Kenneth W. Lewis, Texas state prisoner # 725023, has filed a

request for the issuance of a certificate of appealability (COA)

to appeal from the district court’s denial of his Fed. R. Civ. P.

60(b) motion in this 28 U.S.C. § 2254 proceeding.     Lewis argues

that the district court erred by dismissing his § 2254 petition

as time-barred.   COA is GRANTED with regard to the issue whether

Lewis’s § 2254 petition was time-barred.     Lewis’s second state

habeas application, although dismissed by the Texas courts as an

     *
        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that this opinion should not be published and is not precedent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.
abuse of the writ, was properly filed and thus tolled the

applicable limitation period.   See Villegas v. Johnson, ___ F.3d

___ (5th Cir. Aug. 9, 1999, No. 98-10298).   With the benefit of

the resulting toll, Lewis’s federal habeas petition was filed

within the limitations period established by the AEDPA.     See id.

Accordingly, COA is GRANTED, the judgment of the district court

is VACATED, and the case is REMANDED for further proceedings.
