                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 22, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-30908
                         Summary Calendar



RONALD MARSHALL,

                                    Petitioner-Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 2:04-CV-219-A
                       --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Ronald Marshall, Louisiana prisoner # 336016, appeals from

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

The district court granted a certificate of appealability (COA)

on the issue whether Marshall’s supervisory writ application to

the Louisiana Supreme Court on direct review of his conviction

was properly filed or untimely and, if untimely, whether he was

entitled to equitable tolling.   The Respondent argues that the

petition was timely filed and urges that the case be remanded.


     *
       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this opinion should not be published and is not precedent except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. 04-30908
                                  -2-

The district court’s findings of fact are reviewed for clear

error and issues of law are reviewed de novo when reviewing the

denial of habeas relief.     Moody v. Johnson, 139 F.3d 477, 480

(5th Cir. 1998).

     Pursuant to Louisiana Supreme Court Rule X, § 5(d),

Marshall’s writ application, postmarked October 25, 2000, was

mailed “on or before the last day of the delay for filing,”

October 30, 2000, and was therefore timely.    His conviction

therefore did not become final until January 24, 2002, after the

90-day period for seeking Supreme Court review had expired.        See

Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998).

Marshall’s July 31, 2002, state postconviction application tolled

the limitations period until the Louisiana Supreme Court denied

his timely writ application on December 12, 2003.     See 28 U.S.C.

§ 2244(d).   Marshall’s January 20, 2004, federal petition, was

filed with 138 days of the one-year period yet remaining, and was

therefore timely.

     VACATED AND REMANDED.
