Lewis v. Johnson

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-11242 Summary Calendar LAWRENCE C. LEWIS, Petitioner-Appellant, versus GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. __________________________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:97-CV-1683-P __________________________________________ January 28, 1999 Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges. PER CURIAM:* Lawrence C. Lewis, Texas state prisoner # 373622, appeals from the district court’s dismissal of his federal habeas corpus petition as barred by the one year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). This court granted COA on the statute-of-limitations issue. Lewis argues that the district court erred in dismissing his federal habeas petition as barred by the one-year statute of limitations of § 2244(d)(1) because his first state habeas application tolled the period of limitation for purposes of § 2244(d)(2), rendering his federal petition timely filed. We now have the benefit of two opinions rendered by this court after the district court dismissed Lewis’s petition. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH CIR. R. 47.5.4. A habeas petitioner whose claims otherwise would be time-barred because the limitations period would have expired before the effective date of the AEDPA had a one-year “reasonableness period” or until April 24, 1997, to file his habeas petition. Flanagan v. Johnson, 154 F.3d 196, 200- 02 (5th Cir. 1998). Although Lewis did not file his federal habeas petition on or before April 24, 1997, under § 2244(d)(2), the time during which a properly filed application for state post-conviction or other collateral review is pending does not count toward the period of limitation. § 2244(d)(2). The pendency of Lewis’s first state habeas application, which was denied on August 28, 1996, tolled the one-year reasonableness period for the more than four months that it was pending during the one- year reasonableness period, rendering Lewis’s July 14, 1997, federal habeas petition timely filed. Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). Accordingly, the district court’s judgment dismissing Lewis’s § 2254 petition as time-barred is VACATED, and the cause is REMANDED for further proceedings. VACATED AND REMANDED. 2