Nall v. Ward ( 2000 )


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  •                      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    this opinion should not be published and is not precedent except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
    2
    

Document Info

Docket Number: 98-30822

Filed Date: 7/7/2000

Precedential Status: Non-Precedential

Modified Date: 4/18/2021