IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40560
WENDALL DAY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:97-CV-724
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December 29, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Wendall Day, Texas prisoner # 737690, seeks a certificate of
appealability (“COA”) in order to appeal the district court’s
dismissal of his 28 U.S.C. § 2254 petition as barred by
limitations. A COA may be issued only if the prisoner has made a
"substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2). In cases in which the underlying
constitutional issues were never reached, the movant must make 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that this opinion should not be published and is not precedent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. 98-40560
-2-
credible showing of error by the district court in its dismissal.
See Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”),
Pub. L. 104-132, 110 Stat. 1217 (1996), created the one-year
limitation period contained in 28 U.S.C. § 2244(d)(1). The
district court assumed that the one-year limitation period began
to run when Day’s conviction and sentence became final and that,
even with the tolling of the limitation period during the
pendency of Day’s state habeas application, his § 2254 petition
was not filed timely on July 29, 1997. The district court erred
in this conclusion.
Prisoners attacking convictions or sentences that became
final prior to the AEDPA’s effective date have one year within
which to seek federal habeas relief, commencing on the AEDPA’s
effective date. United States v. Flores, 135 F.3d 1000, 1004-06
(5th Cir. 1998) (28 U.S.C. § 2255 motion). Day’s convictions
became final prior to the effective date of the AEDPA; thus, he
had until April 24, 1997, to file his § 2254 petition. Id.;
Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998).
Pursuant to § 2244(d)(2), however, the period during which a
“properly filed” application for state habeas corpus relief
regarding the same conviction and sentence is pending is not
counted towards the one-year statutory limitation period in
§ 2244(d)(1). See § 2244(d)(2). Day’s state habeas application
was pending for 101 days during the Flores grace period, and the
tolling provision extended the one-year limitation period 101
days from April 24, 1997, or until August 3, 1997. See Fields v.
No. 98-40560
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Johnson, 159 F.3d 914, (5th Cir. 1998), 1998 WL 754901, *3. Day
filed his § 2254 petition on July 29, 1997. Thus, Day’s federal
habeas petition was filed timely.
Day has made a credible showing that the district court
erred in dismissing his petition as time-barred. We lack
jurisdiction to consider the merits of the unaddressed underlying
habeas corpus claims because the district court did not consider
whether a COA should be granted on those issues. Whitehead v.
Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998).
COA is GRANTED, the district court’s judgment is VACATED,
and the case is REMANDED for further proceedings.
Day v. Johnson
Combined Opinion