                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 28, 2003

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                           No. 02-51001
                         Summary Calendar



ANTHONY M. LECHUGA,

                                    Petitioner-Appellant,

versus

ROBERT DINSMORE, Judge 120th District Court of Texas,
El Paso County, Texas,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. EP-01-CV-464-EP
                       --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Anthony M. Lechuga, Texas prisoner # 890614, has filed a

motion for leave to proceed in forma pauperis (“IFP”) in his

appeal of the district court’s dismissal of his petition for a

writ of mandamus for failure to state a claim and the dismissal

of his habeas claims without prejudice as unexhausted.      Lechuga

argues that the district court erred in dismissing his habeas


     *
        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that this opinion should not be published and is not precedent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. 02-51001
                                 -2-

claims for failure to exhaust his state court remedies because

the State of Texas unjustifiably delayed action on his state

habeas application and his state habeas application raised the

same claims as his federal habeas petition.

     At the time the district court entered the order dismissing

Lechuga’s 28 U.S.C. § 2254 petition for failure to exhaust, the

district court was unaware that Lechuga’s state habeas

application had, in fact, already been denied.    The district

court’s order was based on Lechuga’s own assertion that his state

application had not yet been ruled upon.    Thus, the court had the

discretion to either dismiss the petition without prejudice or

hold the matter in abeyance pending the resolution of Lechuga’s

state habeas application.   See Brewer v. Johnson, 139 F.3d 491,

493 (5th Cir. 1998).   In light of the facts before the district

court at the time the order of dismissal was entered, Lechuga has

not shown that the district court erred in dismissing his 28

U.S.C. § 2254 petition without prejudice.     See Great Plains

Equip., Inc. v. Koch Gathering Sys., Inc., 45 F.3d 962, 965 (5th

Cir. 1995).

     To the extent that Lechuga’s brief could be construed as

arguing that the district court erred in denying his Rule 59(e)

motion, his claim is likewise without merit.    The district

court’s decision not to conduct a de novo review of Lechuga’s

28 U.S.C. § 2254 petition was not unreasonable in light of the

fact that the court had dismissed his petition without prejudice
                           No. 02-51001
                                -3-

to its refiling.   St. Paul Mercury Ins. Co. v. Fair Grounds

Corp., 123 F.3d 336, 339 (5th Cir. 1997).

     Because Lechuga has not shown that the district court erred

in certifying that an appeal would not be taken in good faith,

his motion to proceed IFP is DENIED, and his appeal is DISMISSED

as frivolous.   See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th

Cir. 1997); 5TH CIR. R. 42.2.
