                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 11, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-10858
                       USDC No. 2:03-CV-186


GERMAN RODRIGUEZ,

                                     Petitioner-Appellant,
versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                     Respondent-Appellee.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                       --------------------

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

     German Rodriguez, Texas prisoner # 748574, seeks a

certificate of appealability (“COA”) to appeal the district

court’s dismissal of his 28 U.S.C. § 2254 petition for failure

to pay the required filing fee.    To obtain a COA, Rodriguez must

make a substantial showing of the denial of a constitutional

right.   28 U.S.C. § 2253(c)(2).   When the district court has

denied relief on procedural grounds without reaching the

underlying constitutional issue, a COA should be granted if the

petitioner shows that jurists of reason would find it debatable

     *
        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that this opinion should not be published and is not precedent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. 03-10858
                                 -2-

whether the petition stated a valid claim of the denial of a

constitutional right and whether the district court was correct

in its procedural ruling.   Slack v. McDaniel, 529 U.S. 473, 484

(2000).

     Rodriguez contends that COA should be granted and his case

reinstated because he complied with the magistrate judge’s report

requiring him to provide proof that he timely requested the

disbursement of funds for the filing fee.    He urges that the

failure to pay the required fee was not attributable to him but

was caused by prison officials’ unexplained delay in processing

his request.

     The record supports Rodriguez’s assertion that he timely

requested payment of the filing fee and that he submitted

documentation evidencing such request to the district court

during the time prescribed by the magistrate judge.**   Rodriguez

has made a colorable showing that reasonable jurists would find

it debatable whether the district court erred in dismissing his

petition for failure to pay the required filing fee.    Rodriguez

also has at least facially stated a claim under the Due Process

Clause.   Accordingly, COA is GRANTED, the district court’s

judgment is VACATED, and the case is REMANDED for further

proceedings.   See Slack, 529 U.S. at 484.




     **
       In any event, it is clear that Rodriguez qualifies for
pauper status now, and he is proceeding IFP in this appeal.
