                             O R D E R
                           No. 99-31314
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-31314
                        USDC No. 99-CV-235



VINCENT J. BENJAMIN,

                                          Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

                                          Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                       --------------------
                           May 16, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

     On February 3, 1999,2 Vincent J. Benjamin (#119629), a

Louisiana state prisoner, filed an application for a writ of

habeas corpus in the federal district court challenging his 1990

convictions for aggravated rape and armed robbery.     Benjamin's

convictions were affirmed on October 2, 1991, and Smith did not

apply to the state supreme court for discretionary review.


     *
      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this opinion should not be published and is not precedent except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.
     2
       This is the date when the document was received by the
district court. Because it is unclear when the document was
submitted to prison authorities for mailing, the actual "filing"
date would presumably be some date earlier than this date. See
Houston v. Lack, 487 U.S. 266, 270 (1988).
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     On June 6, 1996, Benjamin filed his application for post

conviction relief in the state district court.   The application

was denied as untimely, on November 21, 1996, under La. Code

Crim. P. art. 930.8.    Benjamin filed his application for a writ

of certiorari in the state appellate court on May 6, 1997.    The

application was denied on February 2, 1998.   Benjamin's

application for rehearing was denied on March 24, 1998.    Benjamin

applied to the state supreme court for supervisory and/or

remedial writs.3   The writ application was denied on November 25,

1998.

     The magistrate judge recommended that the federal habeas

application be dismissed as time-barred under 28 U.S.C.

§ 2244(d).   The district court overruled Benjamin’s objections to

the report and recommendation, adopted the findings and

conclusions of the magistrate judge, and entered judgment

dismissing the application.   Benjamin appealed and has applied to

this court for a COA.

     Before Benjamin may proceed with his appeal, he must obtain

a COA from a judge of this court.   28 U.S.C. § 2253(c)(1)(A).

COA will be granted only if Benjamin makes a substantial showing

of the denial of a constitutional right.   28 U.S.C. § 2253(c)(2);

see Drinkard v. Johnson, 97 F.3d 751, 754-56 (5th Cir. 1996).

When the underlying issue is not of constitutional dimension, the

applicant must first make a credible showing that the district

court erred in denying habeas relief before this court will

     3
       The filing date of this document is not discernable from
the record.
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consider whether he has made a substantial showing of the denial

of a constitutional right.    See Robison v. Johnson, 151 F.3d 256,

262 (5th Cir. 1998) (procedural default), cert. denied, 119

S. Ct. 1578 (1999).

     The AEDPA established an explicit limitation period for

state prisoners filing federal habeas petitions:

           (d)(1) A 1-year period of limitation shall apply
     to an application for a writ of habeas corpus by a
     person in custody pursuant to the judgment of a State
     court. The limitation period shall run from the latest
     of --

          (A) the date on which the judgment became
          final by the conclusion of direct review or
          the expiration of the time for seeking such
          review . . . .

               . . .

     (2) 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 shall not be counted toward any period of
     limitation under this subsection.

§ 2244(d)(1)-(2).   A habeas petitioner whose claims otherwise

would be time-barred because the limitations period would have

expired before the effective date of the AEDPA had until April

24, 1997, to file his habeas petition.      Flanagan v. Johnson, 154

F.3d 196, 200-02 (5th Cir. 1998); United States v. Flores, 135

F.3d 1000, 1004-07 (5th Cir. 1998) (§ 2255 case), cert. denied,

119 S. Ct. 846 (1999).   Because Benjamin’s conviction became

final prior to the effective date of the AEDPA, without tolling,

Benjamin had until April 24, 1997, to file his § 2254 petition.

     Benjamin did not file his federal habeas petition within

this one-year “reasonableness period.”      Pursuant to § 2244(d)(2),
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however, the period during which a “properly filed” application

for state habeas corpus relief regarding the same conviction and

sentence is pending is not counted towards the one-year

limitations period in § 2244(d)(1).    See § 2244(d)(2); see also

Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998) (holding

that the § 2244(d)(2) tolling provision applies to the

reasonableness period).

     Because Benjamin’s state habeas petition was found to be

time-barred under La. Code Crim. Proc. Ann. art. 930.8 (West

1997), the district court held that it had not been “properly

filed” for purposes of § 2244(d)(2).   Recently, in Smith v. Ward,

___ F.3d ___ (5th Cir. Apr. 7, 2000), 2000 WL 358294, *3, this

court held that a state habeas application, dismissed as untimely

under article 930.8, was nevertheless "properly filed" for

purposes of the tolling provision of § 2244(d)(2).   See also

Villegas v. Johnson, 184 F.3d 467, 469-70 (5th Cir. 1999).

     Forty two days elapsed between April 24, 1996, and June 6,

1996, the date of filing of the state habeas petition.    An

additional 165 days elapsed between the dismissal of the state

habeas petition by the trial court, on November 21, 1996, and the

filing of the application for a writ of certiorari in the state

appellate court, on May 6, 1997.   Sixty nine additional days

elapsed between the denial of the writ application by the state

supreme court, on November 25, 1998, and the filing of the

federal habeas application, on February 3, 1999.   In sum, it is

apparent that as many as 276 days out of the one-year

reasonableness period elapsed prior to the filing of the federal
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habeas application.   See note 1, supra.   Because the record does

not disclose when the writ application was filed in the state

supreme court, however, it is unclear whether any additional time

elapsed between the denial of the application for rehearing by

the state appellate court and the filing of the writ application

in the state supreme court.

     Benjamin's application for a COA is GRANTED.   The judgment

is VACATED, and the case is REMANDED for further proceedings

consistent with Smith and Villegas.
