                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                          __________________

                             No. 95-10065
                       USDC No. 3:94-CV-2153-R
                          __________________

BILLY WAYNE HORTON,

                                        Petitioner-Appellant,

versus

WAYNE SCOTT, Director,
Texas Dep't of Criminal
Justice, Institutional
Division,


                                        Respondent-Appellee.

                         ____________________

           Appeal from the United States District Court
               for the Northern District of Texas
                       ____________________
                          (June 6, 1995)
Before KING, HIGGINBOTHAM and DeMOSS, Circuit Judges.

BY THE COURT:

     Billy Wayne Horton's notice of appeal has been treated as a

request for a certificate of probable cause (CPC) pursuant to

Fed. R. App. P. 22(b).    Horton exhausted his state habeas corpus

remedies with respect to the claims raised in the instant

petition subsequent to the district court's entry of judgment

dismissing his petition for failure to exhaust.    See Picard v.

Conner, 404 U.S. 270, 275-78 (1971).

     Therefore, Horton's motion for CPC is GRANTED, the judgment

of the district court is VACATED, and the petition is REMANDED

for consideration of the merits.    See Clark v. Williams, 693 F.2d

381, 382 (5th Cir. 1982).    The district court is also directed to
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                           No. 95-10065
                                -2-


determine whether Horton was "in custody" for the instant

burglary conviction at the time that he filed his federal

petition.   See Thompson v. Collins, 981 F.2d 259, 261 (5th Cir.

1993); see also Garlotte v. Fordice, 29 F.3d 216, 217 (5th Cir.

1994), cert. granted, 115 S. Ct. 929 (1995), rev'd. 1995

WL 318633 (U.S. May 30, 1995).
