                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   June 7, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-10296
                           Summary Calendar



GUY RAY BROWN,

                                      Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION

                                      Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:02-CV-2277-P
                       --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Guy Ray Brown, Texas prisoner # 886305, convicted of two

counts of aggravated robbery, appeals the district court’s

dismissal of his 28 U.S.C. § 2254 petition as time-barred under

the one-year limitation period set forth in 28 U.S.C. § 2244(d).

     A certificate of appealability was granted on this issue

because Brown’s objections in the district court and his brief

filed in this court demonstrated that it was debatable whether

     *
        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that this opinion should not be published and is not precedent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. 03-10296
                                  -2-

Brown timely filed his 28 U.S.C. § 2254 petition.     See Slack v.

McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2244(d)(2).

     The respondent has filed a brief and the necessary

documentation and concedes that Brown’s 28 U.S.C. § 2254 petition

was timely filed.    The state court records filed by the

respondent indicate that Brown had a state habeas application

pending from May 8, 2002, until September 11, 2002.    By operation

of 28 U.S.C. § 2244(d)(2), which provides that the time during

which a properly filed state habeas application is pending shall

not be counted toward the limitations period, Brown’s petition,

which was signed on October 12, 2002, and filed on October 18,

2002, was timely filed.    The district court’s judgment is

therefore VACATED.

     The district court’s dismissal was based solely on the time-

bar analysis, without an analysis of the merits of Brown’s

claims.   This case is therefore REMANDED to the district court

for a determination of the merits of Brown’s petition.      See

Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).

     VACATED and REMANDED.
