                    UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                          __________________

                             No. 99-10450
                          _________________



     HENRY CURTIS UNDERWOOD, JR.

                                         Petitioner-Appellee,

                                versus

     GARY L. JOHNSON, DIRECTOR,
     TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
     INSTITUTIONAL DIVISION,

                                         Respondent-Appellant.

            ______________________________________________

         Appeal from the United States District Court for the
                      Northern District of Texas
                              4:98-CV-402-Y
            ______________________________________________
                             April 12, 2000

Before REYNALDO G. GARZA, HIGGINBOTHAM, and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     In 1993, the petitioner, Henry Curtis Underwood, Jr., pleaded

guilty to burglary of a building in Texas state court.       The trial

court deferred adjudication of his guilt and placed Underwood on

probation for a period of ten years.     Had Underwood successfully

completed his probationary term, he would have been entitled to


     *
      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this opinion should not be published and is not precedent except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.
dismissal of the burglary charge.

     Prior to the expiration of Underwood’s probationary term, the

State moved to have the trial court enter an adjudication of

Underwood’s guilt, alleging violations of the conditions of his

probation.    Pursuant to a plea agreement, Underwood admitted to

violating the terms of his probation.         The plea agreement also

indicated that Underwood would receive a sentence of 8 years and

that the 8-year state sentence would run concurrent to a 63-month

federal sentence.       While confined in the Texas prison system,

Underwood discovered that, contrary to the plea agreement, his

state and federal sentences were not running concurrently.

     Underwood filed an application for state habeas relief, which

was denied.    Subsequently, he filed a petition for writ of habeas

corpus   in   federal   court.    After   concluding   that   Underwood’s

petition was not time-barred, the district court found that his

1996 plea was involuntary.       The district court therefore granted

relief “unless the state trial court grants petitioner a new

hearing on the state’s motion to proceed to adjudication within

ninety days or an otherwise reasonable period of time.”               The

respondent filed a motion to stay judgment pending appeal, which

the district court granted.

     Upon a careful review of the record and the briefs, we AFFIRM

the district court’s Order and Final Judgment entered March 31,

1999, granting Underwood’s petition for writ of habeas corpus, for

essentially the reasons set forth by the magistrate judge and




                                    2
relied upon by the district court.2

     Accordingly, the judgment of the district court is AFFIRMED.

                                                        AFFIRMED.




      2
         The district court also granted habeas relief based on
ineffective assistance of counsel. Because our affirmance of the
district court’s judgment is based on the involuntary nature of
Underwood’s plea, we express no opinion with respect to the merits
of the ineffective assistance of counsel claim.

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