                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 23, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-51401
                         Summary Calendar


ROYRY GLENN TONES,

                                    Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 5:06-CV-683
                       --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Royry Glenn Tones, Texas prisoner # 1237607, was convicted

by a jury of two counts of aggravated robbery and was sentenced

to 75 years in prison.   He attempted to file a 28 U.S.C. § 2254

petition challenging this conviction, but the district court

dismissed his petition without prejudice pursuant to FED. R. CIV.

P. 41(b) for failing to comply with a court order to pay the

filing fee or request leave to proceed in forma pauperis.       Tones




     *
       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this opinion should not be published and is not precedent except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. 06-51401
                                 -2-

now seeks a certificate of appealability (COA) to challenge this

dismissal.

     Because a new petition filed by Tones would be barred by the

limitations period of 28 U.S.C. § 2244(d)(1), the district

court’s dismissal without prejudice operates as a dismissal with

prejudice.   See Duncan v. Walker, 533 U.S. 167, 180 (2001); Gray

v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981).

In his notice of appeal, and again before this court, Tones

asserts that he submitted a timely request for withdrawal of his

funds from his prison account and that this request was mailed in

a timely manner.   In light of this, there is no “clear record of

delay or contumacious conduct” by Tones.    See Gray, 634 F.2d at

227 (internal quotation marks omitted).

     Consequently, reasonable jurists would find it debatable

that the district court erred in dismissing Tones’s petition on

procedural grounds.    See Slack v. McDaniel, 529 U.S. 473, 484

(2000).   COA is therefore GRANTED on the question whether Tones

attempted to comply in a timely manner with the district court’s

order for payment.    This case is REMANDED for consideration of

this issue in the first instance by the district court and for

review of the prison records or an evidentiary hearing, if

necessary.   Tones’s motion for leave to proceed in forma pauperis

(IFP) on appeal is likewise GRANTED.
