No. 98-20957
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20957
Summary Calendar
PAUL ALLAN LARSON,
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 Southern District of Texas
USDC No. H-97-CV-3440
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May 5, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
The district court dismissed a federal habeas petition filed
by Paul Allan Larson, Texas prisoner No. 452522, as untimely
because it was filed more than one year after the April 24, 1996,
effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). We authorized Larson to appeal in forma
pauperis and granted him a certificate of appealability on the
issue whether the 28 U.S.C. § 2244(d) limitations period had been
tolled by the pendency of Larson’s second and third state habeas
*
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that this opinion should not be published and is not precedent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. 98-20957
-2-
filings. The respondent was directed to supplement the record
with any state-court documents relevant to Larson’s tolling
arguments.
The respondent now concedes that Larson’s federal
application is timely under Villegas v. Johnson, 184 F.3d 467
(5th Cir. 1999) because the AEDPA limitations was tolled by the
pendency of Larson’s second state habeas application, even though
that application was eventually dismissed as successive under
TEX. CODE CRIM. P. art. 11.07. We agree that Larson’s application
is timely in light of Villegas.
Because the district court never addressed the merits of
Larson’s federal habeas arguments, the denial of federal habeas
relief is VACATED and the case is REMANDED to the district court
for consideration on the merits. See Whitehead v. Johnson, 157
F.3d 384, 387-88 (5th Cir. 1998).
VACATED AND REMANDED.