UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-50431
Summary Calendar
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ROY MENDOZA GARCIA,
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 Western District of Texas
(DR-97-CV-70)
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August 22, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Roy Mendoza Garcia, Texas state prisoner # 653796, appeals the
dismissal, as time-barred under 28 U.S.C. § 2244(d), of his 28
U.S.C. § 2254 habeas petition. He contends the district court so
erred because the pendency of his state habeas application tolled
the one-year grace period following 24 April 1996. The respondent
confesses error, asserting that the pendency of Garcia’s state
application, which he attempted to file on 21 June 1996, and filed
*
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this opinion should not be published and is not precedent except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.
on 22 October 1996, tolled the grace period.
Section 2244(d)(1)(A) provides that a habeas petitioner has
one year from the date that his conviction becomes final, by the
conclusion of direct review or upon the expiration of the time for
seeking such review, to file a habeas application. The time during
which a properly filed application for state post-conviction relief
is pending is not counted toward any period of limitations under
this statute. See § 2244(d)(2). State prisoners whose convictions
have become final before the 24 April 1996, effective date of the
Anti-Terrorism and Effective Death Penalty Act (AEDPA) must be
accorded a reasonable time — the one-year grace period — after
AEDPA’s effective date, within which to file habeas petitions.
Flanagan v. Johnson, 154 F.3d 196, 199-200 & n.2 (5th Cir. 1998).
The § 2244(d)(2) tolling provision applies to the grace period.
Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998).
Because Garcia’s convictions became final before AEDPA’s
enactment, he was entitled to the one-year grace period, which
expired on 24 April 1997. See Flanagan, 154 F.3d at 199-200. Even
assuming Garcia’s state habeas application filed 21 June 1996, was
not “properly filed” for § 2244(d)(2) purposes, his application
filed 22 October 1996, which may remain pending, tolled the grace
period. See Fields, 159 F.3d at 916.
The judgment of the district court dismissing Garcia’s habeas
petition as time-barred is VACATED and the case is REMANDED for the
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court to determine whether Garcia’s federal habeas petition should
be dismissed as premature, pending exhaustion of state remedies.
Garcia requests reimbursement of the $105 appellate filing fee
and sanctions against the respondent of twice the amount of the
filing fee. This court granted Garcia’s motion for leave to
proceed on appeal in forma pauperis, and he thus has not paid an
appellate filing fee. His reimbursement and sanctions requests are
DENIED.
VACATED and REMANDED
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