               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-50676
                         Summary Calendar



UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

versus

JASON KILE CONAWAY,

                                             Defendant-Appellant.


                      ---------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. A-97-CR-16-ALL
                      ---------------------

                            April 29, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jason Kile Conaway, federal inmate # 29326-077, appeals from

the district court’s denial of his motion for an out-of-time

appeal.

     A timely notice of appeal is a mandatory precondition to the

exercise of appellate jurisdiction.    United States v. Merrifield,

764 F.2d 436, 437 (5th Cir. 1985).    Rule 4(b)(1)(A), Fed. R. App.

P., requires that the notice of appeal by the defendant in a



     *
        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that this opinion should not be published and is not precedent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. 98-50676
                                 - 2 -

criminal case be filed within 10 days of entry of the judgment or



order from which appeal is taken.    Rule 4(b)(4), Fed. R. App.

P., allows the district court to grant an additional 30 days in

which to file a notice of appeal upon a finding of excusable

neglect or good cause.

     Because Conaway requested an extension of time to file a

notice of appeal more than one year after the last date for

making such a request, the district court was without

jurisdiction to consider his motion.    Accordingly, the district

court did not err in denying the requested relief.    The appeal

from the denial of the motion, insofar as it seeks an out-of-time

appeal only, is frivolous.    The appeal is DISMISSED as to that

relief sought.

     The motion for an out-of-time appeal also alleged that

Conaway was denied appellate counsel, that his waiver of appeal

was invalid, and that his guilty plea was involuntary.

     Conaway’s motion challenged the validity of his conviction

and was filed after his conviction had become final.    Thus, the

motion should be construed as arising under 28 U.S.C. § 2255, and

the district court did not err procedurally in considering the

merits.   See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.

1993)(pro se actions should be liberally construed)(28 U.S.C.

§ 2254 case); United States v. De Los Reyes, 842 F.2d 755, 757

(5th Cir. 1988)(“[W]e elect to construe Reyes’ ill-styled Rule 35

pleading as a request for relief under section 2255.”).
                          No. 98-50676
                              - 3 -

     However, because Conaway filed the motion after the April

24, 1996, effective date of the Antiterrorism and Effective Death

Penalty Act (AEDPA), the AEDPA applies to Conaway’s appeal, and

he requires a certificate of appealability (COA) to proceed.      See

Lindh v. Murphy, 521 U.S. 320, 336 (1997); United States v.

Carter, 117 F.3d 262, 264 (5th Cir. 1997).   The district court

must make the initial determination whether a COA should issue.

Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997).   Accordingly,

we remand the case for a COA ruling from the district court.

     DISMISSED IN PART; REMANDED IN PART.
