McCall v. Ward ( 1999 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 98-30562
    USDC No. 97-CV-1802
    FRANK L. MCCALL, JR.,
    Petitioner-Appellant,
    versus
    KELLY WARD, Warden, Wade Correctional Center,
    Respondent-Appellee.
    ---------------------
    Appeal from the United States District Court
    for the Western District of Louisiana
    --------------------
    November 9, 1999
    Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    The notice of appeal filed by Frank McCall, Jr., Louisiana
    prisoner #130746, is construed as a request for a certificate of
    appealability (COA) to appeal from the dismissal of his 
    28 U.S.C. § 2254
     petition as untimely.   See Fed. R. App. P. 22(b)(2).     To
    obtain a COA, a petitioner must make a substantial showing of the
    denial of a constitutional right.   See § 2253(c)(2); Drinkard v.
    Johnson, 
    97 F.3d 751
    , 755 (5th Cir. 1996).    In considering a
    nonconstitutional question in a COA application, such as the
    limitations issue presented here, the petitioner must first make
    *
    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    that this opinion should not be published and is not precedent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.
    O R D E R
    No. 98-30562
    - 2 -
    a credible showing of error by the district court.     See Sonnier
    v. Johnson, 
    161 F.3d 941
    , 943-44 (5th Cir. 1998).    Only if the
    petitioner succeeds in doing so will the court consider whether
    he has made a substantial showing of the denial of a
    constitutional right on his underlying claims.   
    Id.
    McCall has made a credible showing that the district court
    erred in dismissing his § 2254 petition as untimely.    Under
    Villegas v. Johnson, 
    184 F.3d 467
    , 470-73 (5th Cir. 1999), the
    filing of McCall’s application for state habeas corpus relief
    served to toll the one-year limitations period under
    § 2244(d)(2), even though the application was rejected by the
    state court as abusive.   As McCall filed his § 2254 petition
    while his state habeas application was pending on review in the
    Louisiana Supreme Court, his federal habeas petition was timely.
    Accordingly, COA is GRANTED, the district court’s judgment
    dismissing McCall’s § 2254 petition as time-barred is VACATED,
    and the case is REMANDED for further proceedings.    See Sonnier,
    
    161 F.3d at 945-46
    .
    COA GRANTED; VACATED AND REMANDED.