IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10942
Summary Calendar
RALPH EDWARD JONES,
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 Northern District of Texas
USDC No. 5:97-CV-270
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September 18, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ralph Edward Jones, Texas prisoner # 768901, appeals the
district court’s denial of his petition for habeas relief under 28
U.S.C. § 2254. The court addressed one issue on the merits and
dismissed the rest as barred by the one-year limitations period of
28 U.S.C. § 2244(d)(1), or alternatively as barred by the
procedural-default doctrine. This court granted a certificate of
appealability (COA) on the issues whether the district court
properly applied the limitations period and the procedural-default
*
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opinion should not be published and is not precedent except under the limited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. 98-10942
-2-
doctrine and whether the district court properly analyzed the
merits of Jones’s jail-time credit claim.
A review of the record and the applicable law reveals
that Jones’s federal habeas petition was timely filed. It was
filed within two days of the end of the one-year grace period. See
Sonnier v. Johnson, 161 F.3d 941, 945 (5th Cir. 1998); Houston v.
Lack, 487 U.S. 266, 276 (1988). Moreover, Jones’s second state
habeas application, which was pending when Jones filed his federal
petition, would serve to toll the limitations period even if
dismissed by the state courts as successive. See Villegas v.
Johnson, 184 F.3d 467, 469-73 (5th Cir. 1999). Jones’s petition
therefore is not barred from review by the statute of limitations.
The district court also relied on a belief that the state
court dismissed Jones’s second habeas petition for abuse of the
writ, which would result in a refusal by this court to address the
merits of these claims under the procedural-default doctrine.
However, the language of the order by the Texas Court of Criminal
Appeals states that Jones’s application was denied, rather than
dismissed. This language implies that the court considered the
merits of Jones’s claims. See Ex Parte Torres, 943 S.W.2d 469, 474
(Tex. Crim. App. 1997)(en banc); Bledsue v. Johnson, 188 F.3d 250,
256 (5th Cir. 1999). Therefore, the claims raised by Jones in his
petition are not barred from review by the procedural default
doctrine. The district court’s opinion is VACATED to the extent it
relies on the one-year limitations period and on procedural
default, and the case is REMANDED for review of the merits of
Jones’s claims.
No. 98-10942
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However, the district court correctly found that Jones’s
jail-credit claim did not state a violation of federal
constitutional law. There is no federal constitutional right to
credit for time served before sentence is imposed unless a
prisoner’s indigence prevents him from making bond and he receives
a maximum possible sentence for his crime. Jackson v. Alabama, 530
F.2d 1231, 1236 (5th Cir. 1976). As the district court properly
found, Jones was not serving the maximum sentence for his offense.
See TEX. PENAL CODE ANN. §§ 19.04(d), 12.33 (West 1974). Jones
asserts on appeal that he is entitled to credit for time served
because he suffered from violations of the Equal Protection clause
and of Brady. Because the court did not grant COA on these issues,
they are not properly before the court. Lackey v. Johnson, 116
F.3d 149, 151-52 (5th Cir. 1997). The district court’s denial of
relief on the jail-credit claim is AFFIRMED.
AFFIRM IN PART, VACATE AND REMAND IN PART.