                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 August 25, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40444
                           Summary Calendar



WALTER EARL FRANKLIN,

                                       Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,

                                       Respondent-Appellee.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                      USDC No. 6:03-CV-578-WMS-HWM
                          --------------------

Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

     Walter Earl Franklin, Texas prisoner #1002429, requests a

certificate of appealability (“COA”) to appeal the district

court’s denial of his 28 U.S.C. § 2254 petition as untimely under

§ 2244(d).     See § 2253(c)(1)(A).   Because the district court

failed to toll the limitations period on December 25, 2003,

Christmas Day, and on December 26, 2003, when the clerk’s office

for the Eastern District of Texas was officially closed, jurists


     *
       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this opinion should not be published and is not precedent except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. 04-40444
                                  -2-

of reason would find that the district court should not have

dismissed Franklin’s habeas petition as time-barred.

See FED. R. CIV. P. 6(a); Slack v. McDaniel, 529 U.S. 473, 484

(2000).   A COA is hereby GRANTED.   The district court’s judgment

denying habeas relief on the basis of the time-bar of 28 U.S.C.

§ 2244(d) is hereby VACATED, and this case is REMANDED to the

district court for consideration of the constitutional claims set

forth in Franklin’s habeas petition.

     VACATED and REMANDED.
