                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 31, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-20258
                         Summary Calendar



TERRO SMITH,

                                    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 Southern District of Texas
                           (04-CV-372)
                      --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Terro Smith (Smith), Texas prisoner # 875683, seeks a

certificate of appealability (COA) to appeal the district court’s

dismissal of his 28 U.S.C. § 2254 petition as time-barred.        Smith

filed the petition to challenge his 18-year sentence for

aggravated sexual assault of a child.   Smith argues that it was

error for the district court to sua sponte dismiss his petition




     *
       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this opinion should not be published and is not precedent except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.
                             O R D E R
                           No. 04-20258
                                -2-

as time-barred, without giving him an opportunity to present

argument opposing dismissal.

     In order to obtain a COA, Smith must show that jurists of

reason would find it debatable whether his petition states a

valid claim of the denial of a constitutional right and whether

the district court was correct in its procedural ruling.    Slack

v. McDaniel, 529 U.S. 473, 484 (2000).    Smith has satisfied this

burden.

     Accordingly, IT IS ORDERED that COA be granted on Smith’s

claim that he is entitled to equitable tolling due to mental

incompetency, VACATE the district court’s denial of 28 U.S.C.

§ 2254 relief, and REMAND to the district court for further

proceedings.   See Dickinson v. Wainwright, 626 F.2d 1184, 1186

(5th Cir. 1980).   COA is denied as to any remaining issues.

     COA GRANTED IN PART, DENIED IN PART; VACATED AND REMANDED.
