                          UNITED STATES COURT OF APPEALS
                                   FIFTH CIRCUIT

                                         ____________

                                         No. 99-30694
                                         ____________


               ROBERT J. SAMPIA, JR.,


                                             Petitioner-Appellant,

               versus


               BURL CAIN, Warden, Louisiana State Penitentiary,


                                             Respondent-Appellee.



                          Appeal from the United States District Court
                             for the Western District of Louisiana
                                    USDC No. 98-CV-2132

                                       September 9, 2002


Before KING, Chief Judge, and JONES and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

       Robert J. Sampia, Louisiana prisoner # 120990, appeals the district court’s dismissal of his

28 U.S.C. § 2254 application for writ of habeas corpus as barred by the one-year limitations period

set forth in 28 U.S.C. § 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act


       *
               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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
of 1996 (AEDPA). The only issue on appeal is whether a motion filed by Sampia in state court

entitled “Motion to Correct an Illegal Sentence” was a “properly filed application for State post-

conviction or other collateral review” within the meaning of § 2244(d)(2)’s tolling provision.

        Sampia was convicted of armed robbery pursuant to a guilty plea on March 30, 1988 and

sentenced to forty years’ imprisonment. Sampia did not appeal his conviction. Sampia then filed two

applications for post-conviction relief challenging the legality of his sentence. Both of Sampia’s

applications were denied by the Louisiana courts.

        Thereafter, on January 22, 1996, Sampia filed a third petition for relief entitled “Motion to

Correct an Illegal Sentence.” In this motion, Sampia pointed out a typographical error in the

transcript of his sentencing hearing. Specifically, the transcript stated that Sampia had pleaded guilty

to LA. REV. STAT. ANN. art. 14:84 (pandering) as opposed to 14:64 (armed robbery). Because the

maximum sentence for a pandering conviction under article 14:84 is five years’ imprisonment, Sampia

argued that his forty-year sentence was illegal. In an order entitled “Denial of Application for Post-

Conviction Relief,” the trial court ordered Sampia’s sentencing transcript corrected, but denied his

request for resentencing as frivolous. Sampia appears to have raised other issues in his “Motion to

Correct an Illegal Sentence,” but the trial court did not specifically address or identify those issues.1



        1
          The United States District Court record does not contain a copy of Sampia’s motion. Thus,
it is impossible for us to know precisely the claims raised by Sampia in that motion. The orders issued
by the Louisiana courts in response to Sampia’s motion do, however, shed some light on the nature
of his claims. For example, the trial court describes at length Sampia’s illegal sentence claim. The
Louisiana appellate court then, without going into detail, refers to “remaining issues” raised by
Sampia that the court finds untimely under article 930.8A of the Louisiana Code of Criminal
Procedure, which sets the limitations period for applications for post-conviction relief. In re: Sampia,
96-00506 (La. App. 3 Cir. 8/12/96) (order denying Sampia’s application for writ of review). The
Louisiana Supreme Court likewise determined that at least some of Sampia’s claims were time-barred
under article 930.8A.

                                                  -2-
The trial court dismissed Sampia’s petition on February 27, 1996.

       Sampia then sought review of the trial court’s decision. On August 12, 1996, the Louisiana

appellate court affirmed the trial court’s decision for two reasons. First, the court noted that

Sampia’s claim that his sentence was illegal was “repetitive and ha[d] previously been addressed by

this court.” In re: Sampia, 96-00506 (La. App. 3 Cir. 8/12/96) (order denying Sampia’s application

for writ of review). Second, the court noted that Sampia’s “remaining issues [were] untimely as

[Sampia] ha[d] failed to state any ground warranting an exception to the time limitation contained

in LA. CODE CRIM. PROC. ANN. art. 930.8,” which limits the time in which a prisoner in custody may

file an application for post-conviction relief.2 Id. Thereafter, on September 19, 1997, the Louisiana

Supreme Court denied Sampia’s request for supervisory or remedial writs without opinion. The

Louisiana Supreme Court’s order included the following citations: LA. CODE CRIM. PROC. ANN. art.

930.8 (setting limitations period for applications for post-conviction relief); Glover v. State, 660

So.2d 1189 (La. 1995) (upholding article 930.8’s limitations provision); and Stepter v. Whitley, 661

So.2d 480 (La. 1995) (distinguishing between applications for post-conviction relief and claims

challenging the legality of a sentence, and holding that article 930.8’s limitations provision did not

apply to the latter). The Louisiana Supreme Court denied reconsideration of its ruling on October

31, 1997.

       Sampia then filed the instant federal habeas petition pursuant to 28 U.S.C. § 2254. The case

was referred to a magistrate judge, who recommended that Sampia’s § 2254 application be dismissed


       2
         At the time of the court’s ruling, article 930.8A prevented Louisiana courts from considering
applications for post-conviction relief “filed more than three years after the judgment of conviction
and sentence has become final.” LA. CODE CRIM. PROC. ANN. art. 930.8A (West 1997). Article
930.8A has since been amended to reduce the limitations period to two years. See LA. CODE CRIM.
PROC. ANN. art. 930.8A (West Supp. 2000).

                                                 -3-
as barred by the one-year limitations period set forth in 28 U.S.C. § 2244(d), as amended by AEDPA.

After Sampia filed objections, the magistrate judge issued a supplemental report and recommendation,

again recommending dismissal of Sampia’s application as untimely. The district court adopted the

magistrate judge’s reports and denied Sampia’s request for a certificate of appealability (“COA”).

We then granted Sampia a COA on the issue of whether his § 2254 was timely filed—specifically, on

the issue of whether his “Motion to Correct an Illegal Sentence” satisfied the criteria of § 2244(d)(2)

and thus tolled AEDPA’s one-year limitations period.

        Section 2244(d), as amended by AEDPA, provides in relevant part:

        (1)     A 1-year period of limitation shall apply to an application for a writ of habeas
                corpus by a person in custody pursuant to the judgment of a State court. The
                limitation period shall run from the latest of --
                (A)     the dat e on which the judgment became final by the conclusionof
                        direct review or the expiration of the time for seeking such review;
                                                  ...
        (2)     The time during which a properly filed application for State post-conviction
                or other collateral review with respect to the pertinent judgment or claim is
                pending shall not be counted toward any period of limitation under this
                subsection.

28 U.S.C. § 2244(d)(1)(A) & (d)(2). Because Sampia’s conviction became final prior to April 24,

1996, the effective date of AEDPA, Sampia had a one-year grace period within which to timely file

an application for federal habeas corpus relief. Flannagan v. Johnson, 154 F.3d 196, 202 (5th Cir.

1998). In other words, absent tolling, Sampia had until April 24, 1997 to file a timely habeas

application. Sampia did not file his habeas application until November 2, 1998.3


        3
        We previously remanded this case twice for a determination of the precise date on which
Sampia placed his federal habeas petition into the prison mail system. See Spotville v. Cain, 149 F.3d
374, 378 (5th Cir. 1998) (holding that a pro se prisoner’s application for federal writ of habeas corpus
is deemed “filed” as of the date it is tendered to prison authorities for mailing). Ultimately, the district
court determined that Sampia placed his application in the prison mail system “sometime between
November 2, 1998, after mail pickup, and November 4, 1998, prior to mail pickup.” The district

                                                    -4-
       Sampia concedes that his federal habeas petition was filed after the expiration of the one-year

grace period following the effective date of AEDPA. Thus, the only way his § 2254 application can

be considered timely is if his “Motion to Correct an Illegal Sentence” was a “properly filed application

for State post-conviction or other collateral review” that tolled the one-year limitations period until

November 2, 1998.4

       Before we can determine whether a motion such as this satisfies the criteria of § 2244(d)(2),

we must first determine whether Sampia’s “Motion to Correct an Illegal Sentence” is a “properly filed

application for State post-conviction or other collateral review.” Under Louisiana law, a prisoner in

custody may only raise certain types of claims in an application for post-conviction relief.

Specifically, article 930.3, as it was written at the time the Louisiana courts ruled on Sampia’s

motion, provided in relevant part:

       If the petitioner is in custody after sentence for conviction for an offense, relief shall
       be granted only on the following grounds:

        (1)    The conviction was obtained in violation of the constitution of the United
               States or the state of Louisiana;
        (2)    The court exceeded its jurisdiction;
        (3)    The conviction or sentence subjected him to double jeopardy;
        (4)    The limitations on the institution of prosecution had expired;
        (5)    The statute creating the offense for which he was convicted and sentenced is
               unconstitutional; or
        (6)    The conviction or sentence constitute the ex post facto application of law in
               violation of the constitution of the United States or the state of Louisiana.


court then held that, because Sampia’s petition would be timely if it was placed in the prison mail
system on November 2, 1998, and because prison authorities had failed to satisfy their burden to
show that the petition was not timely filed, the petition should be deemed filed on November 2, 1998.
       4
         Assuming Sampia’s motion satisfied the criteria of § 2244(d)(2) and was pending until the
Louisiana Supreme Court finally denied him relief on October 31, 1997, Sampia had one year from
that date to file a timely § 2254 application. Because October 31, 1998 was a Saturday, Sampia had
until November 2, 1998 to file his federal habeas petition.

                                                  -5-
LA. CODE. CRIM. PROC. ANN. art. 930.3 (West 1997). At the time Sampia filed his motion with the

state trial court, article 930.8 limited the time during which a prisoner could file a timely application

for post-conviction relief to three years. In addition to applications for post-conviction relief,

Louisiana law also authorizes prisoners to file motions challenging the legality of their sentences. LA.

CODE CRIM. PROC. ANN. art. 882. “An illegal sentence may be corrected at any time by the court that

imposed the sentence or by an appellate court on review.” LA. CODE CRIM. PROC. ANN. art. 882A.

        The parties both approach this case as if Sampia’s motion could only be either an application

for post-conviction relief or a motion to correct an illegal sentence. It appears from the orders in the

record, however, that the Louisiana courts reviewing Sampia’s “Motion to Correct an Illegal

Sentence” viewed it as both. Although the orders issued by the Louisiana courts treated Sampia’s

motion primarily as an untimely application for post-conviction relief, each court addressed Sampia’s

sentence challenge separately on the merits. The Louisiana Supreme Court, when ruling on the

timeliness of a prisoner’s application for post-conviction relief, has previously held that a state trial

court must consider the merits of claims relating to the legality of a prisoner’s sentence even if that

court deems the prisoner’s application otherwise untimely under article 930.8. Stepter v. Whitley,

661 So.2d 480 (La. 1995). We defer to the state court’s characterization of Sampia’s motion. See

Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995) (“It is not our function as a federal appellate court

in a habeas proceeding to review a state’s interpretation of its own law.”).

        On the specific facts of this case, the end result is the same regardless of which type of motion

Sampia filed. To the extent Sampia’s “Motion to Correct an Illegal Sentence” was an application for

post-conviction relief, the Louisiana court s properly dismissed it as untimely without reaching the

merits. Nonetheless, it was st ill “properly filed” within the meaning of § 2244(d)(2). In Smith v.


                                                  -6-
Ward, 209 F.3d 383, 385 (5th Cir. 2000), we noted that article 930.8A is not an absolute bar to filing

because it contains statutory exceptions to untimely filing. Accordingly, article 930.8A limits the

state court’s ability to grant relief, but it is not the type of “time-based procedural filing requirement”

that “would render an application dismissed on that basis as having been not ‘properly filed’.” Id.

(emphasis in original). In conclusion, we held that an application determined by the Louisiana courts

to be time-barred under article 930.8A is “nevertheless . . . ‘properly filed’ within the meaning of §

2244(d)(2).” Id.

        To the extent Sampia’s motion was act ually a motion to correct an illegal sentence, it was

timely under Louisiana law and was addressed by the Louisiana courts on the merits. Thus, it also

appears to satisfy the “properly filed” requirement of § 2244(d)(2). Sampia’s motion is an attempt

to challenge the validity of his sentence after the expiration of time for seeking direct review, and thus

is clearly an “application for St ate post-conviction or other collateral review.” See Brecht v.

Abrahamson, 507 U.S. 619, 633 (1993) (distinguishing collateral review from direct appeals); see

also Martin v. Embry, No. 99-1203, 1999 WL 1123077 (10th Cir. Dec. 8, 1999) (unpublished

opinion) (stating that prisoner’s motion for reconsideration of his sentence pursuant to Colorado Rule

of Criminal Procedure 35(c) was an application for “State post-conviction or other collateral

review”).

        In sum, we conclude that Sampia’s “Motion to Correct an Illegal Sentence” was a “properly

filed application for State post-conviction or other collateral review” that did indeed toll the one-year

limitations period set forth in § 2244(d), as amended by AEDPA.5 As a result, we REVERSE the


        5
       As previously mentioned, we have considered t his case several times for various reasons.
We note here that Sampia’s COA was granted before the Supreme Court decided Slack v. McDaniel,
529 U.S. 473 (2000). In Slack, the Court held that when a district court denies a habeas petition on

                                                   -7-
district court’s dismissal of Sampia’s § 2254 petition as untimely and REMAND the case to the

district court for further proceedings.




procedural grounds without considering the underlying constitutional merits, a COA should issue only
if the prisoner shows both “that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether t he district court was correct in its procedural ruling.” Id. at 484 (emphasis added). To
date, we have not considered the merits of Sampia’s underlying constitutional claims because our pre-
Slack test did not include the merits test now required by Slack.

                                                  -8-
