IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20439
Summary Calendar
GERALD PIETER ZWARST,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-3536
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March 16, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gerald Pieter Zwarst, Texas prisoner # 485451, requests a
certificate of appealability (COA) to appeal the district court’s
dismissal of his petition for habeas relief under 28 U.S.C. §
2254 as time-barred. He argues that his § 2254 petition was
timely filed because his second state habeas application, filed
on April 24, 1997, served to toll the statute of limitations.
Because the second state petition was filed within the grace
period by virtue of being filed on April 24, 1997, IT IS ORDERED
*
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that this opinion should not be published and is not precedent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. 98-20439
-2-
that Zwarst’s request for a COA is granted and the case is
REMANDED for further consideration. See Flanagan v. Johnson, 154
F.3d 196, 199-200 and n.2 (5th Cir. 1998)(grace period runs
through April 24, 1997).
We do not reach either of the other two grounds of dismissal
asserted by Johnson as they did not form the basis of the
district court’s decision.
COA GRANTED; JUDGMENT VACATED; CASE REMANDED.