IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20166
USDC No. H-98-CV-2966
RODNEY NORMAN ROSS, JR.,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeals from the United States District Court
for the Southern District of Texas
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October 21, 1999
Before JOLLY, JONES and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rodney Norman Ross, Jr., Texas prisoner #763978, moves for a
certificate of appealability (COA) to appeal the district court’s
denial of his request for in forma pauperis (IFP) status and the
dismissal of his case with prejudice. Ross contends that his
initial pleading in the district court, entitled “Application for
Leave to File Applicant’s Motion for Habeas Corpus Review in the
*
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that this opinion should not be published and is not precedent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. 99-20166
- 2 -
Interest of Justice,” was not a 28 U.S.C. § 2254 petition, but
that his pleading in case number 98-3438 was intended as his
original § 2254 petition. However, case number 98-3438 was
dismissed with prejudice on the basis that it was duplicative of
the instant case. Thus, the merits of Ross’s § 2254 petition
have not been addressed, and this case remains the sole vehicle
for pursuing those claims.
Accordingly, COA is GRANTED. The district court’s order
dismissing Ross’s case with prejudice is VACATED and this case is
REMANDED for consideration of Ross’s Application for Leave to
File Applicant’s Motion for Habeas Corpus Review in the Interest
of Justice.
Ross’ motion to proceed IFP on appeal is GRANTED.
COA AND IFP GRANTED; VACATED AND REMANDED.