           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         December 8, 2008
                                       No. 05-31015
                                                                      Charles R. Fulbruge III
                                                                              Clerk
ELRICK J. GALLOW,

                                                  Petitioner–Appellant,
v.

LYNN COOPER, Warden, Avoyelles Parish Correctional Center,

                                                  Respondent–Appellee.


                     Appeal from the United States District Court
                        for the Western District of Louisiana
                               USDC No. 6:04-CV-1905


Before GARWOOD, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
       Elrick J. Gallow appeals the district court’s dismissal of his petition for
habeas corpus as barred by the one-year limitations period of the Antiterrorism
and Effective Death Penalty Act (AEDPA).1 We conclude that Gallow’s motions
to withdraw his guilty plea were properly filed as post-conviction motions.
However, we cannot determine from the record before us the length of time these
motions remained pending. Accordingly, we vacate and remand for further
findings.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
           28 U.S.C. § 2244(d).
                                       No. 05-31015

                                              I
       On November 23, 1999, Gallow pleaded guilty in Louisiana state court to
one count of second-degree kidnapping and one count of second-degree battery.
According to Gallow, after the victim took the stand to testify, his counsel
refused to proceed with any form of defense and forced him to enter a guilty plea
or “run the risk of proceeding without effective assistance of counsel.” In
accordance with the terms of his plea agreement, Gallow was sentenced to serve
concurrent sentences of thirty years and fifteen years. At the time of Gallow’s
conviction, the applicable Louisiana statute provided that a “motion for an
appeal must be made no later than [f]ive days after the rendition of the
judgment or ruling from which the appeal is taken.”2 Therefore, the magistrate
judge determined that the November 23, 1999 judgment became final no later
than December 3, 1999.3
       On February 18, 2000, September 1, 2000, and September 6, 2000, Gallow
filed a “Motion to Withdraw Guilty Plea” in Louisiana trial court. Gallow did not
produce copies of these pleadings to the district court in the habeas corpus
proceedings, but the magistrate judge “assumed that [Gallow] raised a single
claim for relief through these proceedings—ineffective assistance of counsel
(conflict of interest) which resulted in an involuntary guilty plea.”
       On August 29, 2001, and October 15, 2001, Gallow filed an “Application for
Post-Conviction Relief” in Louisiana trial court. The trial court explicitly denied
these applications for post-conviction relief on November 16, 2001.                       On

       2
           LA. CODE CRIM. PROC. ANN. art. 914 (1997).

       3
         See LA. CODE CRIM. PROC. ANN. art. 13 (2003) (stating that, in computing a period of
time, legal holidays, such as Thanksgiving, are not to be included in the calculation when the
period is less than seven days).

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                                       No. 05-31015

November 26, 2001, Gallow filed a “Motion and Order for an Appeal,” requesting
reconsideration of the trial court’s decision. The trial court denied this motion
on March 25, 2002, on the ground that Gallow failed to pay the filing fee for this
appeal as required by Louisiana Code of Criminal Procedure article 914.1(2).
The district court granted leave to appeal the March 25, 2002 decision on the
condition that Gallow pay the costs for the appeal. The district court dismissed
Gallow’s appeal on May 6, 2002, for failure to pay the appeal costs.
      On July 30, 2002, Gallow filed a “Petition for Supervisory Writ of Review”
in the Louisiana Third Circuit Court of Appeal. The Third Circuit denied
Gallow’s petition on May 8, 2003. Gallow then applied to the Louisiana Supreme
Court for “Supervisory or Remedial Writs” on August 1, 2003. The Louisiana
Supreme Court denied Gallow’s application on August 20, 2004.
      On September 14, 2004, Gallow filed his federal habeas corpus petition.
The magistrate judge recommended dismissing the petition as time barred under
AEDPA’s one-year limitations period on the ground that Gallow’s motions to
withdraw his guilty plea were not properly filed. The district court accepted the
magistrate judge’s recommendations and dismissed the petition. We review an
order dismissing a habeas petition as time barred under AEDPA de novo.4
                                             II
      AEDPA establishes a one-year statute of limitations for filing a federal
habeas corpus petition that begins to run on “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review.”5 AEDPA’s limitations period is tolled, however, while “a

      4
          Starns v. Andrews, 524 F.3d 612, 617 (5th Cir. 2008).
      5
          28 U.S.C. § 2244(d)(1)(A).

                                              3
                                        No. 05-31015

properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending.”6
                                               A
       The United States Supreme Court has held that “a petition filed after a
time limit, and which does not fit within any exceptions to that limit” is not
properly filed.7 The State argues that Gallow’s motions to withdraw his guilty
plea, filed after sentencing, do not toll the limitations period because they were
untimely filed under Louisiana Code of Criminal Procedure article 559(A).8
       In State ex rel. Clark v. Marullo, the Louisiana Supreme Court held that
a trial court may set aside a guilty plea after sentencing when the facts
surrounding the guilty plea render it constitutionally deficient.9 According to
the Marullo court, a motion to withdraw a guilty plea filed after sentencing can
be properly adjudicated as a petition for habeas corpus.10                   The Louisiana
Supreme Court has further held that article 559 “is inapplicable” when a
defendant files a motion to withdraw a guilty plea after sentencing and
constitutional infirmity is alleged.11


       6
           § 2244(d)(2).
       7
           Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005).
       8
         LA. CODE CRIM. PROC. ANN. art. 559(A) (2003) (“The court may permit a plea of guilty
to be withdrawn at any time before sentence.”).
       9
           352 So. 2d 223, 227 (La. 1977).
       10
        See id. (“In light of [Louisiana Code of Criminal Procedure article 2] it would not be
reasonable to hold that a motion [to withdraw a guilty plea] may not be heard and relief
granted merely because it is not labeled ‘habeas corpus.’”).
       11
          State v. Smith, 406 So. 2d 1314, 1316 (La. 1981) (holding that a trial court
adjudicating a motion to withdraw a guilty plea after sentencing is “acting pursuant to its post

                                               4
                                  No. 05-31015

       Based on controlling Louisiana Supreme Court precedent, we conclude
that a motion to withdraw a guilty plea filed after sentencing in the convicting
trial court can be considered properly filed as a post-conviction motion and can
commence tolling the one-year statute of limitations on the date filed.
                                        B
       Gallow argues that his plea withdrawal motions tolled the limitations
period from the filing of his first motion to withdraw his guilty plea on February
18, 2000, until August 20, 2004, when the Louisiana Supreme Court denied his
application for supervisory or remedial writs. However, the record is unclear in
this regard.
       On September 1, 2000, Gallow filed a motion to withdraw his guilty plea
in Louisiana trial court claiming ineffective assistance, a claim Gallow
reasserted in his August 29, 2001 and October 15, 2001 applications for post-
conviction relief. On November 15-16, 2001, the trial court conducted a hearing;
the minutes indicated that the hearing concerned an application for post-
conviction relief and a motion to withdraw the guilty plea. However, the minute
order does not describe whether all of Gallow’s motions to withdraw his guilty
plea were before the court. Further, the court’s written judgment on November
16, 2001, states only that “[t]his matter came up . . . for hearing on both of
defendant’s Applications for Post Conviction Relief” and that “both of defendant’s
Applications for Post Conviction Relief are hereby denied with prejudice.” It is
unclear whether the trial court’s November 16, 2001 judgment also adjudicates
Gallow’s motions to withdraw his guilty plea. The record is also unclear as to




conviction jurisdiction”).

                                        5
                                  No. 05-31015

whether there is a prior or subsequent disposition of Gallow’s motions to
withdraw his guilty plea.
      We therefore remand for consideration of the length of time that Gallow’s
motions to withdraw guilty plea were pending, whether any were successive, and
consideration of any further issues regarding these or other filings, dispositions
or matters that bear on the timeliness of Gallow’s § 2254 application.
                                 *      *      *
      VACATED and REMANDED.




                                        6
