                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                                No. 98-40013
                              Summary Calendar



                              JAMES M. MALONE,

                                                 Petitioner-Appellant,

                                   versus

                     GARY L. JOHNSON, DIRECTOR,
                TEXAS DEPARTMENT OF CRIMINAL JUSTICE
                       INSTITUTIONAL DIVISION,

                                                 Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:97-CV-717
                       --------------------

                              December 13, 1999

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

     James M. Malone, Texas prisoner # 666213, appeals the district

court’s dismissal of his 28 U.S.C. § 2254 petition as barred by the

one-year statute of limitations in 28 U.S.C. § 2244(d).                Malone

argues that because the limitations period was tolled during the

pendency of    his   second    state   habeas    application,   his    §   2254

petition was timely filed.        Because Malone’s second state habeas

application    was   “properly     filed”   in    accordance    with   Texas’


     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that this opinion should not be published and is not precedent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.
procedural requirements, the time during which it was pending is

not counted    toward   the   limitations   period.   See   Villegas    v.

Johnson, 184 F.3d 467, 470 (5th Cir. 1999).      Malone’s second state

application was filed on August 1, 1996, and was denied on April 9,

1997.    Because the limitations period was tolled during the time

during which Malone’s second state habeas application was pending,

Malone’s § 2254 petition was timely filed on July 25, 1997.            The

district court’s dismissal of Malone’s § 2254 petition as time-

barred was plain error.       See Johnson v. United States, 520 U.S.

461, 467 (1997)(it is enough that an error be plain at the time of

appellate consideration); United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994).

     Nor can we affirm on the alternate ground found by the

district court.    The last state court decision does not clearly

show that Malone’s second state habeas application was denied as

abuse of the writ.      See Booker v. Lynaugh, 872 F.2d 100 (5th Cir.

1989).

     The district court’s judgment is VACATED and the case is

REMANDED for further proceedings.

     VACATED AND REMANDED.
