Nall v. Ward

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 7, 2000
• Docket: 98-30822
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-30822 Summary Calendar _____________________

DENNIS NALL,

Petitioner-Appellant,

versus

KELLY WARD, Warden,

Respondent-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (98-CV-203) _________________________________________________________________ July 5, 2000 Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Dennis Nall, Louisiana prisoner # 105494, appeals, pro se, the

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

one-year statute of limitations set forth in 28 U.S.C.

§ 2244(d)(1). Nall contends that the district court erred in

determining that his state application for post-conviction relief,

dismissed as untimely pursuant to LA. CODE CRIM. P. art. 930.8, see

Nall v. State, 703 So. 2d 14 (La. 1997), was not “properly filed”,

as that term is used in § 2244(d)(2).

Subsequent to the dismissal of Nall’s application by the

district court, our court issued opinions in Villegas v. Johnson,

184 F.3d 467, 469 (5th Cir. 1999) (state habeas application,

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. dismissed as successive pursuant to TEX. CODE CRIM. P. ANN. art.

11.07, § 4, “properly filed” within meaning of § 2244(d)(2)), and

Smith v. Ward, 209 F.3d 383, 385 (5th Cir. 2000) (state application

for post-conviction relief, denied as time-barred pursuant to LA.

CODE CRIM. P. art. 930.8, “properly filed” within meaning of §

2244(d)(2)). Under Villegas and Smith, Nall’s state application

for post-conviction relief was “properly filed” for purposes of

§ 2244(d)(2) and should have tolled the § 2244(d)(1) limitations

period. Accordingly, the judgment dismissing Nall’s § 2254

application as time-barred is VACATED, and the case is REMANDED for

further proceedings consistent with this opinion.

VACATED and REMANDED