IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31160
GARY V. SIMS,
Petitioner-Appellant,
versus
WARDEN, WADE CORRECTIONAL CENTER,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-947
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June 21, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Gary V. Sims, Louisiana state prisoner # 125162, moves this
court for a certificate of appealability (COA) to appeal the
district court’s dismissal of his federal petition for a writ of
habeas corpus under 28 U.S.C. § 2254 as time-barred under the
one-year limitation period of 28 U.S.C. § 2244(d). The district
court reasoned that the period during which Sims’s second state
post-conviction application was pending did not toll the one-year
limitation period because the application was denied as untimely
under La. Code Crim. Proc. Ann. art. 930.8.
*
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that this opinion should not be published and is not precedent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.
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Sims argues that the district court erred in dismissing his
§ 2254 petition as time-barred because the Louisiana Supreme
Court’s dismissal of his second state post-conviction application
was not based on “an independent and adequate default doctrine.”
He contends that his second post-conviction application in fact
was a motion to correct an illegal sentence which the Louisiana
Supreme Court erroneously treated as a post-conviction
application and denied as untimely.
To obtain a COA, Sims must make a substantial showing of the
denial of a constitutional right. See § 2253(c)(2). In
considering a nonconstitutional question in a COA application,
such as the limitations issue presented here, Sims must first
make a credible showing of error by the district court. See
Sonnier v. Johnson, 161 F.3d 941, 943-44 (5th Cir. 1998).
Under § 2244(d)(1)(A), a habeas petitioner has one year from
the date that his conviction becomes final to file a habeas
petition. Because Sims challenges a state-court conviction which
became final before the effective date of the AEDPA, without
tolling, Sims had until April 24, 1997, to file his § 2254
petition. Flanagan v. Johnson, 154 F.3d 196, 199-201 (5th Cir.
1998). Sims did not file his petition until May 26, 1999.
Pursuant to § 2244(d)(2), however, the period during which a
“properly filed” application for state habeas corpus relief is
pending is not counted towards the one-year limitation period in
§ 2244(d)(1).
The district court found that the Louisiana Supreme Court
denied writs on Sims’s post-conviction applications on September
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20, 1996, and on July 2, 1998. Because the district court
treated the latter application as a post-conviction application
rather than as a motion to correct an illegal sentence, we treat
the application as a post-conviction application for purposes of
§ 2244(d)(2). Because of the limited record on appeal, however,
this court cannot determine the length of time Sims’s post-
conviction applications were pending in state court for purposes
of § 2244(d)(2). The pendency of one or both of Sims’s state
post-conviction applications, if “properly filed,” may have
tolled the one-year reasonableness period, possibly for a length
of time sufficient to render Sims’s federal habeas petition
timely filed. See Fields v. Johnson, 159 F.3d 914, 916 (5th Cir.
1998).
In rendering judgment, the district court did not have the
benefit of this court’s decision in Smith v. Ward, No. 98-30444,
2000 WL 358294 at *3 (5th Cir. Apr. 7, 2000). In Smith, 2000 WL
358294 at *3, this court held that a state habeas application,
denied as time-barred pursuant to art. 930.8, was “properly
filed” within the meaning of § 2244(d)(2). Because, under Smith,
the pendency of Sims’s second state post-conviction application,
dismissed as untimely under art. 930.8, may have tolled the
limitation period, Sims has made a credible showing that the
district court erred in dismissing his federal habeas petition as
time-barred. See Sonnier, 161 F.3d at 943-44. Accordingly,
Sims’s motion for a COA is GRANTED. The case is VACATED and
REMANDED to the district court for it to determine whether Sims
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§ 2254 petition was timely in the light of Smith. See Sonnier,
161 F.3d at 945-46.
COA GRANTED; VACATED AND REMANDED.