IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41400
Summary Calendar
DAVID N. SMITH,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(1:97-CV-319)
November 30, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner Smith appeals the dismissal of his petition for
writ of habeas corpus, arguing that the district court erred in
finding his petition time barred. We agree that his petition was
not time barred, so we VACATE the judgment of the district court
and REMAND for proceedings to consider the merits of Smith's
petition.
In 1986, Smith was convicted by a jury of sexual assault and
sentenced to 60 years' imprisonment, his punishment enhanced by 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this opinion should not be published and is not precedent except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.
prior felony conviction for burglary of a motor vehicle. After
direct state review, Smith filed three state applications for writ
of habeas corpus. The first sought the record of his trial for
sexual assault without costs. The second application attacked a
conviction for aggravated robbery. The final state habeas
application, filed July 23, 1996, attacked his conviction for
sexual assault, asserting that his trial counsel was ineffective,
his appellate counsel was ineffective, his jury instructions
included an unconstitutional reasonable doubt instruction and the
jury instructions in his punishment phase included an
unconstitutional instruction on parole under Texas law. The Texas
Court of Criminal Appeals dismissed the application April 9, 1997,
citing TEX. CODE CRIM. P. art. 11.07 § 4 (West. Supp. 1999), which
calls for the dismissal of successive habeas applications unless
certain exceptions obtain. Smith filed his federal habeas petition
June 6, 1997. The magistrate judge recommended that Smith's
petition be dismissed as time barred, and the district court
adopted the recommendation and dismissed the petition.
Smith contends that the limitations period was tolled by the
pendency of the state application for writ of habeas corpus filed
July 23, 1996 and dismissed April 9, 1997. The Antiterrorism and
Effective Death Penalty Act (AEDPA) established a 1 year
2
limitations period for filing § 2254 petitions. See 28 U.S.C. §
2244(d)(1). Section 2244(d)(2) provides that
The time during which a properly filed application for
State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.
A petitioner has 1 year from April 24, 1996, the effective date of
the AEDPA, to file his federal habeas petition for a conviction
that became final before the AEDPA's effective date. United States
v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998)(deciding under 28
U.S.C. § 2255). The court below determined that since Smith's
final state habeas application was dismissed for abuse of the writ,
his federal habeas petition was not "properly filed" for purposes
of § 2244(d)(2), and the limitations period was not tolled during
the pendency of his final state habeas application.
We have found that a state application for writ of habeas
corpus dismissed as successive may still be "properly filed" to
toll the limitations period under § 2244(d)(2). See Villegas v.
Johnson, 184 F.3d 467, 469-73 (5th Cir. 1999). Under Villegas, the
limitations period was tolled while Smith's final state habeas
application was pending. Smith's federal habeas petition was
filed within two months of the dismissal of his last state habeas
application, his petition should not be dismissed as time barred.1
1
Although the Director did not argue before the district court
that state procedural default barred federal habeas review of
Smith's petition, the Director argues on appeal that because
Smith's final state application for habeas review was dismissed for
abuse of the writ, his federal habeas petition should be dismissed.
State procedural default does not preclude federal jurisdiction
over habeas petitions, and it is a defense that states are
3
We find that Smith's federal habeas petition was not barred by
the statute of limitations. We VACATE the judgment of the district
court and REMAND for proceedings to consider the merits of Smith's
petition.
VACATED and REMANDED.
obligated to raise. See Trest v. Cain, 522 U.S. 87, 89 (1997).
Although we may consider state procedural default when raised for
the first time on appeal, we should not do so when the petitioner
has not been given notice that the issue would be raised. See
Fisher v. Texas, 169 F.3d 295, 301-2 (5th Cir. 1999). Since the
Director first raised the issue of state procedural fault in his
brief in opposition to Smith's appeal, we will not consider the
defense in this appeal.
4