                           No. 99-60749
                                -1-

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-60749
                         Summary Calendar



CARTER GASTON, III,
                                          Petitioner-Appellant,

versus

JAMES V. ANDERSON, Superintendent,
Mississippi State Penitentiary;
MIKE MOORE, Attorney General,
State of Mississippi,
                                          Respondents-Appellees.

                       - - - - - - - - - -
          Appeal from the United States District Court
            for the Northern District of Mississippi
                    USDC No. 4:98-CV-249-P-D
                       - - - - - - - - - -
                          April 25, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

          Carter Gaston, III, Mississippi state prisoner # 45973,

requests this court to grant him a certificate of appealability

(COA) to appeal the district court’s dismissal of his 28 U.S.C.

§ 2254 petition.   Gaston raised the following claims in his

petition: (1) trial and appellate counsel were ineffective;

(2) the trial court imposed an illegal sentence; (3) the police

conducted an illegal search; (4) the trial judge should have

recused himself; (5) the grand jury foreman was improperly


     *
        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that this opinion should not be published and is not precedent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. 99-60749
                                -2-

selected; (6) the indictment was improper; (7) one of Gaston’s

convictions was improperly used to enhance his sentence; and

(8) persons were improperly excluded from the jury.   The

Mississippi Supreme Court addressed the same issues, which had

been raised in Gaston’s state application for writ of habeas

corpus.   The state court held that Gaston’s claims were waived

and procedurally barred under Miss. Code Ann. § 99-39-21(1),

except for the illegal search claim, which was barred by res

judicata, and the claim of ineffective assistance of counsel,

which the court found to be without merit.

     When it dismissed the § 2254 petition, the district court

held that the claims raised by Gaston were denied by the state

court on independent and adequate state procedural grounds.         See

Stokes v. Anderson, 123 F.3d 858, 859-60 (5th Cir. 1997).      As

Gaston correctly points out, the ineffective-assistance claim was

not denied on procedural grounds by the state court; therefore,

he has made a credible showing that the district court erred when

it dismissed the ineffective-assistance claim as procedurally

barred.

     Gaston’s request for a COA is GRANTED on the issue whether

trial and appellate counsel rendered ineffective assistance.        On

all remaining issues, Gaston has failed to make a credible

showing that the district court erred when it dismissed his

petition; therefore, COA is DENIED as to those issues.      See

Sonnier v. Johnson, 161 F.3d 941, 943 (5th Cir. 1998).      The

district court’s order is VACATED and the case REMANDED for

consideration of Gaston’s ineffective-assistance claim.
                     No. 99-60749
                          -3-

COA DENIED in part; GRANTED in part; VACATED and REMANDED.
