               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 00-20224
                       USDC No. H-00-CV-345

                           Summary Calendar



EVANS WILLIAM MCKINNELY,
                                            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 Southern District of Texas

                            June 26, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Evans William McKinnely, Texas prisoner # 554193, seeks a
certificate of appealability (“COA”) to appeal the district court’s
dismissal without prejudice of his petition for habeas corpus filed
pursuant to 28 U.S.C. § 2254. McKinnely’s federal petition alleged
that a state habeas application had been filed on October 12, 1999,
but that no decision had been made.      The district court sua sponte
dismissed the petition for failure to exhaust state remedies.




     *
      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this opinion should not be published and is not precedent except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.
     McKinnely has provided this court with evidence that his state
application for habeas relief has recently been denied by the Texas
Court of Criminal Appeals. Ordinarily, this court will not enlarge
the record on appeal with evidence that was not before the district
court.   See Trinity Indus., Inc. v. Martin, 963 F.2d 795, 799 (5th
Cir. 1992).       Under these limited circumstances, we find that the
interests of justice and judicial economy are best served by
granting    the    COA,   VACATING   the      dismissal     and   REMANDING    for
reconsideration      of   McKinnely’s       petition   in   light   of   the   new
evidence.
     COA GRANTED; VACATED and REMANDED.




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