Goff v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 3, 2003
• Docket: 98-50722
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50722 Summary Calendar

JUNE GOFF,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-97-CV-204 - - - - - - - - - -

February 22, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

June Lee Goff, Texas prisoner #731056, seeks a certificate

of appealability (COA) to appeal the district court’s dismissal

of his 28 U.S.C. § 2254 petition as time-barred by 28 U.S.C.

§ 2244(d)’s one-year limitations period. The district court did

not address the merits of Goff’s petition. Goff contends that

his § 2254 petition was timely filed because his state habeas

application tolled the limitations period.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-50722 -2-

Because Goff’s petition was dismissed as time-barred, in

order for him to obtain a COA, he must make a credible showing

that the district court erred in dismissing his petition as time-

barred. See Sonnier v. Johnson, 161 F.3d 941, 943-46 (5th Cir.

1998).

There is a one-year grace period, commencing on April 24,

1996 (the effective date of the Antiterrorism and Effective Death

Penalty Act) for the filing of § 2254 petitions, and petitions

filed before or on April 24, 1997, are considered timely.

Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998). Also,

the period of time a properly filed state habeas petition is

pending tolls the limitations period and the one-year grace

period. See Fields v. Johnson, 159 F.3d 914, 915-16 (5th Cir.

The district court determined that Goff had filed his state

habeas application on February 6, 1997, and that the application

was denied on March 19, 1997. The period of time the state

habeas application was pending was 42 days, and the one-year

grace period for Goff’s filing of his § 2254 petition was

extended by 42 days, thus making his petition due by June 5,

1997. Goff’s petition was stamped filed by the district court on

June 5, 1997. Goff’s petition was timely filed, and he has made

a credible showing that the district court erred.

Accordingly, COA is GRANTED, the judgment of the district

court is VACATED, and the case is REMANDED for further

proceedings.