                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 99-40395
                       USDC No. 2:98-CV-51-DF


JAMES WILSON,

                                     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

                        --------------------
                          January 10, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     James Wilson, Texas prisoner # 655097, requests a

Certificate of Appealability (COA) to appeal the district court’s

dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust

state remedies.   In his § 2254 petition, Wilson raised only the

issue of whether the prosecution failed to disclose evidence

favorable to the defense in violation of Brady v. Maryland, 373

U.S. 83 (1963).   He argues that he exhausted this issue by



     *
        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that this opinion should not be published and is not precedent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.
raising it in his second state application for post-conviction

relief.

     An applicant must make a substantial showing of the denial

of a constitutional right to obtain a COA.    See § 2253(c)(2).    In

order to obtain a COA for the nonconstitutional issue of

dismissal for failure to exhaust state remedies, the applicant

must first make a credible showing of exhaustion.      See Murphy v.

Johnson, 110 F.3d 10, 11 (5th Cir. 1997).    Only if that question

is answered in the affirmative will the court consider whether

the applicant has made a substantial showing of the denial of a

constitutional right on the underlying claim.    Id.

     Wilson plainly raised the Brady issue in his second state

petition for post-conviction relief which the Texas Court of

Criminal Appeals dismissed under TEX. CODE CRIM. P. ANN. art.

11.07, § 4.   Therefore, he has exhausted state remedies with

respect to this issue, and the district court erred in dismissing

his petition.   This court ordinarily would proceed to the merits

of Wilson’s habeas claim.   See Sonnier v. Johnson, 161 F.3d 941,

945-46 (5th Cir. 1998).   However, this court lacks jurisdiction

to do so in the instant case because the district court did not

address the merits of Wilson’s claim as an alternative to its

procedural holding.   See id.; Whitehead v. Johnson, 157 F.3d 384,

387-88 (5th Cir. 1998).   Accordingly, COA is GRANTED, the

judgment of the district court is VACATED, and the case is

REMANDED to the district court for further proceedings.
