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No. 99-31314
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31314
USDC No. 99-CV-235
VINCENT J. BENJAMIN,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
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May 16, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
On February 3, 1999,2 Vincent J. Benjamin (#119629), a
Louisiana state prisoner, filed an application for a writ of
habeas corpus in the federal district court challenging his 1990
convictions for aggravated rape and armed robbery. Benjamin's
convictions were affirmed on October 2, 1991, and Smith did not
apply to the state supreme court for discretionary review.
*
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this opinion should not be published and is not precedent except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.
2
This is the date when the document was received by the
district court. Because it is unclear when the document was
submitted to prison authorities for mailing, the actual "filing"
date would presumably be some date earlier than this date. See
Houston v. Lack, 487 U.S. 266, 270 (1988).
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On June 6, 1996, Benjamin filed his application for post
conviction relief in the state district court. The application
was denied as untimely, on November 21, 1996, under La. Code
Crim. P. art. 930.8. Benjamin filed his application for a writ
of certiorari in the state appellate court on May 6, 1997. The
application was denied on February 2, 1998. Benjamin's
application for rehearing was denied on March 24, 1998. Benjamin
applied to the state supreme court for supervisory and/or
remedial writs.3 The writ application was denied on November 25,
1998.
The magistrate judge recommended that the federal habeas
application be dismissed as time-barred under 28 U.S.C.
§ 2244(d). The district court overruled Benjamin’s objections to
the report and recommendation, adopted the findings and
conclusions of the magistrate judge, and entered judgment
dismissing the application. Benjamin appealed and has applied to
this court for a COA.
Before Benjamin may proceed with his appeal, he must obtain
a COA from a judge of this court. 28 U.S.C. § 2253(c)(1)(A).
COA will be granted only if Benjamin makes a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2);
see Drinkard v. Johnson, 97 F.3d 751, 754-56 (5th Cir. 1996).
When the underlying issue is not of constitutional dimension, the
applicant must first make a credible showing that the district
court erred in denying habeas relief before this court will
3
The filing date of this document is not discernable from
the record.
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consider whether he has made a substantial showing of the denial
of a constitutional right. See Robison v. Johnson, 151 F.3d 256,
262 (5th Cir. 1998) (procedural default), cert. denied, 119
S. Ct. 1578 (1999).
The AEDPA established an explicit limitation period for
state prisoners filing federal habeas petitions:
(d)(1) A 1-year period of limitation shall apply
to an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest
of --
(A) the date on which the judgment became
final by the conclusion of direct review or
the expiration of the time for seeking such
review . . . .
. . .
(2) 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.
§ 2244(d)(1)-(2). 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 until April
24, 1997, to file his habeas petition. Flanagan v. Johnson, 154
F.3d 196, 200-02 (5th Cir. 1998); United States v. Flores, 135
F.3d 1000, 1004-07 (5th Cir. 1998) (§ 2255 case), cert. denied,
119 S. Ct. 846 (1999). Because Benjamin’s conviction became
final prior to the effective date of the AEDPA, without tolling,
Benjamin had until April 24, 1997, to file his § 2254 petition.
Benjamin did not file his federal habeas petition within
this one-year “reasonableness period.” Pursuant to § 2244(d)(2),
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however, the period during which a “properly filed” application
for state habeas corpus relief regarding the same conviction and
sentence is pending is not counted towards the one-year
limitations period in § 2244(d)(1). See § 2244(d)(2); see also
Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998) (holding
that the § 2244(d)(2) tolling provision applies to the
reasonableness period).
Because Benjamin’s state habeas petition was found to be
time-barred under La. Code Crim. Proc. Ann. art. 930.8 (West
1997), the district court held that it had not been “properly
filed” for purposes of § 2244(d)(2). Recently, in Smith v. Ward,
___ F.3d ___ (5th Cir. Apr. 7, 2000), 2000 WL 358294, *3, this
court held that a state habeas application, dismissed as untimely
under article 930.8, was nevertheless "properly filed" for
purposes of the tolling provision of § 2244(d)(2). See also
Villegas v. Johnson, 184 F.3d 467, 469-70 (5th Cir. 1999).
Forty two days elapsed between April 24, 1996, and June 6,
1996, the date of filing of the state habeas petition. An
additional 165 days elapsed between the dismissal of the state
habeas petition by the trial court, on November 21, 1996, and the
filing of the application for a writ of certiorari in the state
appellate court, on May 6, 1997. Sixty nine additional days
elapsed between the denial of the writ application by the state
supreme court, on November 25, 1998, and the filing of the
federal habeas application, on February 3, 1999. In sum, it is
apparent that as many as 276 days out of the one-year
reasonableness period elapsed prior to the filing of the federal
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habeas application. See note 1, supra. Because the record does
not disclose when the writ application was filed in the state
supreme court, however, it is unclear whether any additional time
elapsed between the denial of the application for rehearing by
the state appellate court and the filing of the writ application
in the state supreme court.
Benjamin's application for a COA is GRANTED. The judgment
is VACATED, and the case is REMANDED for further proceedings
consistent with Smith and Villegas.