               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-31291



WADE P. JACKSON,

                                               Plaintiff-Appellant,

versus

BURL CAIN, Warden, Louisiana State penitentiary,

                                          Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 98-CV-2837-G
                       --------------------
                           June 23, 2000


Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

     Wade P. Jackson, Louisiana prisoner No. 113076, seeks a

certificate of appealability (COA) to appeal the dismissal of his

habeas corpus application as time-barred by the one-year statute

of limitations in 28 U.S.C. § 2244(d), as amended by the

Antiterrorism and Effective Death Penalty Act of 1996.   The

district court determined that Jackson’s second through fifth

state applications for post-conviction relief, which were

dismissed as untimely pursuant to Louisiana Code of Criminal

Procedure article 930.8, were not “properly filed” as that term

     *
        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that this opinion should not be published and is not precedent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. 99-31291
                                   -2-

is used in § 2244(d)(2), and thus, failed to toll the limitations

period.

     Our recent opinions in Villegas v. Johnson** and Smith v.

Ward*** reflect that Jackson’s third and fourth state applications

for post-conviction relief were, in fact, properly filed for

purposes of § 2244(d) and that they tolled the 28 U.S.C.

§ 2244(d) limitations period.     With this tolling, Jackson’s

federal habeas application is facially timely.     Thus, Jackson has

established that the district court erred by dismissing his

petition as untimely.     Slack v. McDaniel, ___ U.S. ___, 120 S.

Ct. 1595, 1604 (April 26, 2000).     We decline to address the

merits of Jackson’s constitutional arguments as they were never

considered by the district court.     See Slack, 120 S. Ct. at 1604.

    Accordingly, we GRANT Jackson’s motion for a COA, VACATE the

judgment dismissing his § 2254 application as time-barred, and

REMAND the case for consideration of the merits of his claims.

See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.

1998)(granting COA, vacating district court dismissal of case for

failure to exhaust state remedies, and remanding without

briefing).

     MOTION FOR COA GRANTED.     VACATED AND REMANDED.




     **
           184 F.3d 467 (5th Cir. 1999).
     ***
           209 F.3d 383, 385 (5th Cir. 2000).
