IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31291
WADE P. JACKSON,
Plaintiff-Appellant,
versus
BURL CAIN, Warden, Louisiana State penitentiary,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 98-CV-2837-G
--------------------
June 23, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Wade P. Jackson, Louisiana prisoner No. 113076, seeks a
certificate of appealability (COA) to appeal the dismissal of his
habeas corpus application as time-barred by the one-year statute
of limitations in 28 U.S.C. § 2244(d), as amended by the
Antiterrorism and Effective Death Penalty Act of 1996. The
district court determined that Jackson’s second through fifth
state applications for post-conviction relief, which were
dismissed as untimely pursuant to Louisiana Code of Criminal
Procedure article 930.8, were not “properly filed” as that term
*
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that this opinion should not be published and is not precedent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. 99-31291
-2-
is used in § 2244(d)(2), and thus, failed to toll the limitations
period.
Our recent opinions in Villegas v. Johnson** and Smith v.
Ward*** reflect that Jackson’s third and fourth state applications
for post-conviction relief were, in fact, properly filed for
purposes of § 2244(d) and that they tolled the 28 U.S.C.
§ 2244(d) limitations period. With this tolling, Jackson’s
federal habeas application is facially timely. Thus, Jackson has
established that the district court erred by dismissing his
petition as untimely. Slack v. McDaniel, ___ U.S. ___, 120 S.
Ct. 1595, 1604 (April 26, 2000). We decline to address the
merits of Jackson’s constitutional arguments as they were never
considered by the district court. See Slack, 120 S. Ct. at 1604.
Accordingly, we GRANT Jackson’s motion for a COA, VACATE the
judgment dismissing his § 2254 application as time-barred, and
REMAND the case for consideration of the merits of his claims.
See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.
1998)(granting COA, vacating district court dismissal of case for
failure to exhaust state remedies, and remanding without
briefing).
MOTION FOR COA GRANTED. VACATED AND REMANDED.
**
184 F.3d 467 (5th Cir. 1999).
***
209 F.3d 383, 385 (5th Cir. 2000).