Woolbright v. Johnson ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50913
HERMAN EARL WOOLBRIGHT,
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-98-CV-18
--------------------
November 3, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Herman Earl Woolbright, Texas prisoner # 462540, seeks a
certificate of appealability (“COA”) to appeal the district
court’s dismissal of his 28 U.S.C. § 2254 petition as time-
barred, pursuant to 28 U.S.C. § 2244(d). Woolbright first argues
that the limitation rules of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) do not apply to his case because his
most recent state habeas application was filed before the AEDPA’s
*
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that this opinion should not be published and is not precedent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. 98-50913
- 2 -
enactment date. This argument is without merit. See Lindh v.
Murphy, 521 U.S. 320, 336 (1997).
If his COA request is liberally construed, Woolbright
contends that the district court erred by dismissing his § 2254
petition as time-barred. COA is GRANTED with regard to the issue
whether his § 2254 petition was time-barred.
Woolbright’s third state habeas application, although
dismissed by the Texas courts as an abuse of the writ, was
properly filed and thus tolled the applicable limitation period.
See Villegas v. Johnson, 184 F.3d 467, 472-73 (5th Cir. 1999).
With the benefit of the resulting tolling, Woolbright’s federal
habeas petition was filed within the limitations period
established by the AEDPA. See Flanagan v. Johnson, 154 F.3d 196,
199-200 (5th Cir. 1998)(state prisoners seeking to challenge
convictions which became final prior to April 24, 1996, have a
one-year “grace period” within which to file); Fields v. Johnson,
159 F.3d 914, 916 (5th Cir. 1998)(tolling provision of
§ 2244(d)(2) applies to “grace period”). At the time
Woolbright’s third state habeas application was filed, May 3,
1996, only 9 days of the grace period had lapsed. The
limitations period was tolled from the date that the third state
habeas application was filed until the date that it was
dismissed, April 9, 1997. Woolbright therefore had an additional
356 days from the date his third state habeas application was
dismissed within which to file (one year less the 9 days which
had already lapsed), or until March 31, 1998. His petition,
filed before February 17, 1998, was thus timely. Accordingly,
No. 98-50913
- 3 -
COA is GRANTED, the judgment of the district court is VACATED,
and the case is REMANDED for further proceedings.
COA GRANTED; VACATED AND REMANDED.