IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30924
Summary Calendar
ALLEN WAYNE GIBBS,
Petitioner-Appellant,
versus
WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CV-309
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January 31, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Allen Wayne Gibbs, Louisiana prisoner #394497, seeks a
certificate of appealability (COA) to appeal from the dismissal
of his 28 U.S.C. § 2254 habeas corpus application as time-barred
pursuant to 28 U.S.C. § 2244(d). Gibbs’s habeas application
challenges his state-court conviction of aggravated rape.
A COA may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). This standard requires a showing “that
*
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that this opinion should not be published and is not precedent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. 02-30924
-2-
reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). When a district court
denies 28 U.S.C. § 2254 relief on procedural grounds without
reaching the merits of the § 2254 application, this court should
grant a COA only if the COA movant makes the showing set out
above and shows that jurists of reason would find it debatable
whether the district court’s procedural ruling was correct. Id.
Gibbs argues that only 356 days of the 365-day limitation
period of 28 U.S.C. § 2244(d)(1) expired before he filed his
federal habeas application. Gibbs’s conviction became final on
December 28, 1999, 90 days after the Supreme Court of Louisiana
denied his writ application on direct appeal. See Daniel
v. Cockrell, 283 F.3d 697, 705 (5th Cir.), cert. denied,
123 S. Ct. 286 (2002). The one-year limitations period was
tolled by Gibbs’s August 28, 2000, application for state
postconviction relief, 28 U.S.C. § 2244(d)(2), and it may have
remained tolled until the Supreme Court of Louisiana denied
Gibbs’s writ application on October 26, 2001. Melancon v. Kaylo,
259 F.3d 401, 406 (5th Cir. 2001). If that was the case, then
356 countable days elapsed between the date on which Gibbs’s
conviction became final and the date on which he served his
federal habeas corpus application.
However, it is unclear from the current record whether
Gibbs’s state-court writ applications were timely filed and
No. 02-30924
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whether any periods not excused from the one-year limitations
period due to untimely filings in state court rendered the
federal habeas application untimely. On remand, the district
court should examine the state-court record and determine whether
Gibbs’s state-court writ applications were timely. See LA. CT.
APP. UNIF. R. 4-2, 4-3; LA. S. CT. R. X § 5(a); see also Barnard
v. Barnard, 675 So. 2d 734, 734 (La. 1996). We note that Gibbs
does not himself allege that the state trial court reduced to
writing any order setting a return date for the filing of Gibbs’s
writ application in the Louisiana Court of Appeal, an act that
might have rendered the filing of that writ application timely,
thus tolling the federal limitations period. See Melancon,
259 F.3d at 407. It is out of an abundance of caution that we
grant a COA and remand the case for further consideration.
Pursuant to Hall v. Cain, 216 F.3d 518 (5th Cir. 2000),
we have reviewed Gibbs’s underlying constitutional claims to
determine whether he has alleged a facially valid claim of the
denial of a constitutional right. Gibbs has alleged facially
valid claims of denials of constitutional rights; those claims
should be considered by the district court in the first instance.
Cage v. Louisiana, 498 U.S. 39 (1990) (reasonable doubt
instruction); Strickland v. Washington, 466 U.S. 668, 689-94
(1984) (ineffective assistance); Johnson v. Puckett, 176 F.3d
809, 820 (5th Cir. 1999) (state court evidentiary rulings);
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Johnson v. Puckett, 929 F.2d 1067, 1071-72 (5th Cir. 1991)
(discriminatory foreman-selection process).
COA GRANTED. VACATED AND REMANDED.