United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 7, 2004
Charles R. Fulbruge III
Clerk
No. 03-10296
Summary Calendar
GUY RAY BROWN,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-2277-P
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Guy Ray Brown, Texas prisoner # 886305, convicted of two
counts of aggravated robbery, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition as time-barred under
the one-year limitation period set forth in 28 U.S.C. § 2244(d).
A certificate of appealability was granted on this issue
because Brown’s objections in the district court and his brief
filed in this court demonstrated that it was debatable whether
*
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that this opinion should not be published and is not precedent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. 03-10296
-2-
Brown timely filed his 28 U.S.C. § 2254 petition. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2244(d)(2).
The respondent has filed a brief and the necessary
documentation and concedes that Brown’s 28 U.S.C. § 2254 petition
was timely filed. The state court records filed by the
respondent indicate that Brown had a state habeas application
pending from May 8, 2002, until September 11, 2002. By operation
of 28 U.S.C. § 2244(d)(2), which provides that the time during
which a properly filed state habeas application is pending shall
not be counted toward the limitations period, Brown’s petition,
which was signed on October 12, 2002, and filed on October 18,
2002, was timely filed. The district court’s judgment is
therefore VACATED.
The district court’s dismissal was based solely on the time-
bar analysis, without an analysis of the merits of Brown’s
claims. This case is therefore REMANDED to the district court
for a determination of the merits of Brown’s petition. See
Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
VACATED and REMANDED.