                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No.    00-60079




                        DAVID W. DUPLANTIS,

                                              Petitioner-Appellant,


                                 VERSUS


  WALTER BOOKER, Superintendent; MIKE MOORE, Attorney General,
                      State of Mississippi


                                              Respondents-Appellees.



          Appeal from the United States District Court
            for the Southern District of Mississippi
                          (4:97-CV-136)

                          August 1, 2001

Before SMITH, DUHÉ and WIENER, Circuit Judges.

PER CURIAM:1

     David W. Duplantis (“Duplantis”) appeals the district court’s

dismissal of his petition for a writ of habeas corpus under 28

U.S.C. § 2254.   We agree with the district court that Duplantis’s

petition is time-barred under 28 U.S.C. § 2244(d).    Therefore, we

AFFIRM.


     1
      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this opinion should not be published and is not precedent except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.
                                BACKGROUND

     Duplantis was convicted in Mississippi state court for felony

jail escape. On October 17, 1995, the Mississippi Court of Appeals

affirmed his conviction, and on December 29, 1995, it denied his

petition for a rehearing.      On August 12, 1996, Duplantis filed a

motion for out-of-time writ of certiorari with the Mississippi

Supreme Court.    The court denied that motion on November 13, 1996.

     On March 14, 1997, Duplantis filed an application with the

supreme court for leave to file a petition for post-conviction

relief in the trial court.      The court denied his application in an

order dated August 13, 1997 and filed on August 20, 1997.2

     Duplantis filed his § 2254 petition in federal district court

on October 16, 1997.   Respondents moved to dismiss the petition as

untimely, pursuant to 28 U.S.C. § 2244(d).           The district court

adopted   the   magistrate’s    report   and   recommendation   that   the

petition should be dismissed as time-barred.         However, the court

granted Duplantis a certificate of appealability (“COA”).

                                DISCUSSION

     Duplantis’s appeal involves only issues of law, therefore we

conduct a de novo review.      Kiser v. Johnson, 163 F.3d 326, 327 (5th


     2
      Duplantis filed a request to withdraw his application as
incomplete on March 27, 1997, and he filed a new application on
April 17, 1997. The supreme court granted his request to withdraw
the first application in an order dated May 13, 1997, and filed May
23, 1997. However, by that time, Duplantis had filed his revised
application, so there was an application pending continually from
March 14, 1997 to August 20, 1997.

                                    2
Cir. 1999).       Under § 2244(d)(1)(A), a state prisoner has one year

from the date that his conviction became final by the conclusion of

direct review or by the expiration of the time for seeking such

review to file his § 2254 petition.               However, a state prisoner

attacking a conviction or sentence that became final prior to April

24, 1996, the effective date of the Antiterrorism and Effective

Death   Penalty    Act,   Pub.   L.       No.    104-132,   110   Stat.   1214

(1996)(“AEDPA”), has a one year grace period from that date to file

his petition (i.e., until April 24, 1997).                  See Flanagan v.

Johnson, 154 F.3d 196, 202 (5th Cir. 1998).           Moreover, § 2244(d)(2)

provides that “[t]he 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 the one year period of limitation.

     The magistrate judge found that Duplantis had filed his § 2254

petition 540 days after the effective date of AEDPA.                 He then

determined that Duplantis’s applications for state post-conviction

relief tolled the limitations period for 159 days, the number of

days they were pending.      However, the magistrate judge reasoned

that Duplantis’s motion for an out-of-time writ of certiorari was,

by its own terms, not “properly filed” under § 2244(d)(2), so it

did not toll the limitations period.                He also stated that the

Respondents’ position that a writ of certiorari is a discretionary

part of the direct appeals process and not an application for post-

conviction relief was reasonable.               Therefore, he concluded that

                                      3
Duplantis’s § 2254 petition was filed sixteen days too late (540

minus 159 minus 365 (one year) = 16).

      The district court adopted the magistrate’s recommendations,

but granted COA as to only the following designated issue: did

Duplantis’s    filing    of   his   motion       for   an   out-of-time      writ   of

certiorari    on   August     12,   1996       constitute   a    “properly    filed”

application which tolled the AEDPA limitations period?                     Although

this language is, admittedly, somewhat ambiguous, we read the COA

as restricting our review to the technical question whether the

motion was “properly filed” under § 2244(d)(2).                  Therefore, we do

not decide the issue raised by Respondents, that such a motion was

not   a   motion   for   “State     post-conviction         or   other   collateral

review.”

      Our narrow construction of the COA is consistent with AEDPA’s

overall purpose to limit the opportunity for a state prisoner to

seek federal habeas review.3          In light of this purpose, Congress

restricted appellate review of the district courts’ disposition of

habeas petitions by enacting the COA requirement.4                 Therefore, out

      3
      See Villegas v. Johnson, 184 F.3d 467, 470-71 (5th Cir. 1999)
(“AEDPA was an attempt on the part of Congress to ‘“reduce federal
intrusion into state criminal proceedings,”’ encourage claim
exhaustion, and accord greater deference to state court
adjudications.” (citations omitted)); Cantu-Tzin v. Johnson, 162
F.3d 295, 296 (5th Cir. 1998) (noting that the one year limit
contained in § 2244(d)(1) was an effort by Congress “to bring
regularity and finality to federal habeas proceedings.”).
      4
      See U.S. v. Rocha, 109 F.3d 225, 227 n.2 (5th Cir. 1997) (“The
COA requirement makes us a gatekeeper and is designed to prevent
judicial resources from being squandered by searching for the

                                           4
of deference to the district court and in view of AEDPA, we should

construe our jurisdiction narrowly.            Moreover, our construction is

a more reasonable interpretation of the COA.              The district court

specifically highlighted the “properly filed” requirement when it

described    the   designated   issue     as    whether   Duplantis’s    motion

“constituted a ‘properly filed’ application which tolled the AEDPA

statute.”    Even Duplantis himself read the COA as we do, because

his initial brief was focused on whether his motion for out-of-time

writ of certiorari had been “properly filed.”

     Having decided the scope of our jurisdiction in this appeal,

we proceed to the merits of the designated issue.                In Artuz v.

Bennett, 531 U.S. 4, 8, 121 S. Ct. 361, 364, 148 L. Ed. 2d 213

(2000), the Supreme Court held that an application for post-

conviction relief or other collateral review is “properly filed”

“when its delivery and acceptance are in compliance with the

applicable    laws   and   rules   governing      filings.    These     usually

prescribe, for example, . . . the time limits upon its delivery .

. . .”   However, in Smith v. Ward, 209 F.3d 383, 384-85 (5th Cir.

2000), we held that an untimely application was nevertheless

“properly filed” in a Louisiana court, because the courts were

expressly empowered to accept late filings and consider whether the

applicant met certain statutory exceptions to the presumptive time

limit.



‘merits’ of meritless appeals.”)

                                      5
     Under   Rule    17(b)    of   the   Mississippi   Rules   of   Appellate

Procedure, a petition for a writ of certiorari for review of a

decision of the court of appeals must be filed in the supreme court

within fourteen days from the date of entry of the appellate

court’s   judgment    on     the   petitioner’s    motion   for     rehearing.

However, this period may be “extended upon motion filed within such

time.”

     Duplantis did not file his motion for an out-of-time writ of

certiorari until over seven months after the court of appeals

denied his motion for rehearing.             Therefore, he clearly did not

comply with Mississippi’s rules governing the time limits for

petitions for writs of certiorari.           As a result, we hold that his

motion was not “properly filed” within the meaning of § 2244(d)(2).

     Duplantis appears to argue in his reply brief, however, that

he had three years from the ruling on his direct appeal in which to

file his motion for out-of-time writ of certiorari, pursuant to §

99-39-5(2) of the Mississippi Code.           That section governs motions

for post-conviction collateral relief by state prisoners, and does

not address time limitations for motions for certiorari. Duplantis

does not explain why the three-year statute of limitations in § 99-

39-5(2) ought to apply to motions for writs of certiorari instead

of the very specific rule contained in Rule 17(b).             Therefore, we

reject his argument.

     Based on the foregoing, the district court’s determination

that Duplantis’s motion for an out-of-time writ of certiorari was

                                         6
not “properly filed” was correct.    His § 2254 petition is time-

barred.   We therefore AFFIRM.

    AFFIRMED.




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