IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-51029
JOE EPPERSON,
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 Western District of Texas
USDC No. A-97-CV-533
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February 19, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Joe Epperson, Texas prisoner # 588235, seeks a certificate
of appealability (“COA”) for an appeal from the district court’s
dismissal of his 28 U.S.C. § 2254 application as barred by
limitations. See 28 U.S.C. § 2253(c)(1)(A). COA will be granted
only if Epperson makes a substantial showing of the denial of a
federal right. 28 U.S.C. § 2253(c)(2). When the underlying
issue is not of constitutional dimension, as in this COA
application, the prisoner must first make a credible showing that
the district court erred before this court will consider whether
*
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this opinion should not be published and is not precedent except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. 97-51029
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he has made a substantial showing of the denial of a
constitutional right. See Murphy v. Johnson, 110 F.3d 10, 11
(5th Cir. 1997).
A one-year period of limitation applies to applications for
a writ of habeas corpus by persons in custody pursuant to the
judgment of a State court. 28 U.S.C. § 2244(d)(1). A habeas
applicant whose claims otherwise would be time-barred because the
limitations period would have expired before the effective date
of the AEDPA had until April 24, 1997, to file his habeas
application. Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.
1998). Because Epperson’s conviction became final prior to the
effective date of the AEDPA, without tolling, Epperson had until
April 24, 1997, to file his § 2254 application. Epperson’s
habeas application was filed after that date.
Under § 2244(d)(2), the period during which an application
for state habeas corpus relief regarding the same conviction and
sentence is pending is not counted towards the one-year statutory
limitations period in § 2244(d)(1). See Fields v. Johnson, 159
F.3d 914, 916 (5th Cir. 1998). Because Epperson’s state
postconviction proceeding was pending for 98 days during the year
following April 24, 1996, Epperson had 98 days past April 24,
1997, within which to file his habeas application in the district
court. His June 16, 1997, habeas application was filed within
that time. COA is GRANTED as to this issue only.
This court lacks jurisdiction to consider the merits of
Epperson’s unaddressed underlying habeas corpus claims. See
Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998).
No. 97-51029
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Accordingly, the district court’s judgment is VACATED and the
case is REMANDED for further proceedings.
COA GRANTED; VACATED AND REMANDED.