                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        March 30, 2007

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                No. 05-40878
                              Summary Calendar


                               RAY DALE HOOKS,

                            Petitioner-Appellant,

                                   versus

  NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
          JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                            Respondent-Appellee.

                           --------------------
              Appeal from the United States District Court
                    for the Eastern District of Texas
                           USDC No. 2:04-CV-389
                           --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Ray Dale Hooks, Texas prisoner # 909360, appeals from the

dismissal of his 28 U.S.C. § 2254 habeas corpus application as

time-barred, pursuant to 28 U.S.C. § 2244(d). Hooks challenges his

conviction of involuntary manslaughter and leaving the scene of an

accident.     He moves to supplement the record with materials that

appear   to   have   been   omitted   from   the   record;   his    motion     to

supplement is granted.




     *
       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this opinion should not be published and is not precedent except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. 05-40878
                                   -2-

      At issue on appeal is the effect of Hooks’s motion for

rehearing or reconsideration after the Texas Court of Criminal

Appeals denied his state habeas corpus application. If that motion

tolled the limitations period, then Hooks’s § 2254 application was

timely filed.      If the motion did not toll the limitations period,

then the § 2254 application was untimely.

      The federal limitations period is tolled for “The 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[.]”      § 2244(d)(2).       Texas law provides that “A

motion for rehearing an order that denied habeas corpus relief . .

. may not be filed.”     TEX. R. APP. P. 79.2(d) (West 2003).          However,

the   Court   of   Criminal   Appeals   “has   entertained     motions       for

reconsideration,     notwithstanding    the    language   in   .   .    .   Rule

79.2(d).”     Emerson v. Johnson, 243 F.3d 931, 934 (5th Cir. 2001).

When a motion for rehearing is properly filed within the § 2244(d)

limitations period, that period is tolled from the date of the

habeas denial, as if the motion for rehearing is a further step in

the state habeas process.      Lookingbill v. Cockrell, 293 F.3d 256,

261 (5th Cir. 2002); Emerson, 243 F.3d at 935; see Melancon v.

Kaylo, 259 F.3d 401, 406-07 (5th Cir. 2001) (the intervals between

disposition of state habeas application and timely filing of an

application for review at the next level are not counted); Gordon

v. Dretke, 107 F. App’x 404, 406 (5th Cir. 2004) (noting that a

motion to reconsider denial of state habeas application was filed
                                   No. 05-40878
                                        -3-

after   the     expiration    of    the   §   2244(d)     limitations   period;

distinguishing case from Emerson and Lookingbill). The limitations

period is tolled “only as long as the Texas courts take to resolve

the motion or suggestion for reconsideration.”               Emerson, 243 F.3d

at 935.

     A Texas motion for reconsideration is considered filed for

tolling purposes when it is delivered to the Court of Criminal

Appeals and noted on that court’s docket sheet.               See id. at 932.

Hooks’s motion was received and noted on the docket sheet on

October 1, 2004; the motion therefore was filed.

     Contrary to the respondent’s assertion, our caselaw does not

require that the Court of Criminal Appeals actually address a

prisoner’s motion for rehearing or reconsideration for it to be

considered as properly filed pursuant to § 2244(d)(2) to toll the

limitations period.        The Court of Criminal Appeals evidently did

address   the    motions     in    both   Emerson   and    Lookingbill.    See

Lookingbill, 293 F.3d at 259; Emerson, 243 F.3d at 932.                     In

Emerson, however, we noted that some prisoners might bypass moving

for rehearing or reconsideration in state court if they were unable

to predict whether the Court of Criminal Appeals would apply Rule

79.2(d) literally or would follow caselaw allowing that court to

consider motions for rehearing or reconsideration.               Emerson, 243

F.3d at 935.      We reasoned that it would discourage exhaustion of

state-court remedies were this court to not toll the limitations

period for a motion for rehearing or reconsideration.             Id.   Were we
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                                       -4-

to require that a motion for rehearing actually be considered by

the    Court    of    Criminal   Appeals   for   that   motion   to   toll   the

limitations period, we would create exactly the situation we sought

to    avoid    in    Emerson.    Hooks’s   motion   for   reconsideration    or

rehearing therefore tolled the limitations period, and his § 2254

application was timely filed.         We express no opinion on the merits

of Hooks’s underlying habeas corpus claims.

       VACATED AND REMANDED; MOTION TO SUPPLEMENT GRANTED.
