                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS           May 2, 2003

                         FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                                                  Clerk


                             No. 02-30479
                           Summary Calendar



     GLENN C. OSBORNE,

                                           Petitioner-Appellant,

          versus

     BURL CAIN, WARDEN, LOUISIANA
     STATE PENITENTIARY,

                                           Respondent-Appellee.



           Appeal from the United States District Court
               for the Western District of Louisiana
                        USDC No. 00-CV-1338



Before GARWOOD, JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

     Glenn C. Osborne, Louisiana prisoner # 130680, was convicted

after a jury trial of aggravated rape and was sentenced to life

imprisonment.   He appeals the district court’s dismissal of his 28

U.S.C. § 2254 petition as time-barred.           We granted a COA to

consider: (1) whether Osborne’s state submissions were “properly



     *
      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opinion should not be published and is not precedent except under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.
filed” as of the date they were received by the state court clerk;

(2) whether the limitations period should be equitably tolled for

the period between the receipt of the submissions and their filing;

and (3) whether equitable tolling should apply for the time by

which the August 23, 1999, return date set by the state district

court exceeded the thirty-day limitations period in Louisiana

Uniform Rules of the Courts of Appeal, 4-3.

     Osborne     contends    that    his   state   court    submissions    were

“properly filed” within the meaning of 28 U.S.C. § 2244(d)(2) at

the time they were stamped received by the state court clerk.                 An

application is “properly filed” when “its delivery and acceptance

are in compliance with the applicable laws and rules governing

filings.”      Artuz v. Bennett, 531 U.S. 4, 8 (2000).              We assume,

arguendo, that Osborne has not shown that the receipt of his

documents met this standard.

     Alternatively, Osborne asserts that the limitations period

should be equitably tolled for the eighty-three day difference

between the receipt of his state court submissions and their

filing.   He contends that there was no reason for these delays and

that he had no control over the lapse of this time.              Although the

magistrate     judge   who   first     examined      the   limitations    issue

recognized that equitable tolling might apply during the period of

these delays, the district court did not specifically address this

aspect    of   Osborne’s     equitable     tolling     arguments.        Osborne


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diligently pursued his federal rights by filing his 28 U.S.C. §

2254    petition     nineteen   days    after    his    state    remedies     were

exhausted.    Given this diligence, the unusual length of the delays

between receipt and filing in state court (at least three weeks on

three occasions), Osborne’s assertion that his submissions were in

compliance    with     the   procedural      rules     for   filing,    and     the

respondent’s total failure to identify any deficiency in the

pleadings or other cause for the delays in filing, we find that

equitable tolling applies. See Phillips v. Donnelly, 216 F.3d 508,

511 (5th Cir.), reh’g granted in part, 223 F.3d 797 (5th Cir.

2000); Coleman v. Johnson, 184 F.3d 398, 402-03 (5th Cir. 1999).

       Equitable tolling, for the periods between the submission and

filing of Osborne’s petitions in state court, alone however, is not

enough to render Osborne’s federal petition timely.               Even with the

benefit of such tolling, Osborne’s federal petition is late by at

least four days.         Osborne, therefore, points to an additional

twenty-three days that he maintains should not be counted against

his deadline for the filing of his section 2254 habeas petition.

       Osborne’s second petition for state post-conviction relief was

denied by the state trial court on June 30, 1999.                Under Rule 4-3

of the Louisiana Uniform Rules—Courts of Appeal, following the

denial of relief, the trial court must fix a reasonable time, not

to   exceed   thirty    days,   in   which     the   applicant   must    file    an

application    for     supervisory     writs    with   the   proper     Louisiana


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appellate court. Osborne ultimately filed his application with the

Louisiana Second Circuit on August 23, 1999—twenty-three days after

the expiration of the thirty-day period for seeking appellate

relief.   Rule 4-3, however, also provides that “[u]pon proper

showing, the trial court or the appellate court may extend the time

for filing the application [beyond thirty days] upon the filing of

a motion for extension of return date by the applicant, filed

within the original or an extended return date period.”                See

Uniform Rules—Courts of Appeal, Rule 4-3. Although Osborne did not

file his application until after the expiration of thirty days from

June 30, 1999, he did timely file a notice of intent to seek

appellate review and a request for the fixing of a return date in

the state trial court on July 19, 1999, and on July 22, 1999, the

state trial court set the return date for the filing of Osborne’s

application for Monday, August 23, 1999, the day on which Osborne

ultimately   filed.   The   Louisiana   Court   of   Appeal   denied   the

application for writ of review not because it was untimely but

because the underlying application for post-conviction relief was

untimely under La. Code Crim. P. art. 930.8.     The Louisiana Supreme

Court similarly denied writ application on the same basis.

     Accordingly, we hold that because Osborne within the thirty

day period timely sought and received an extension of the period

for filing his application for supervisory writs, the limitations

period was tolled pursuant to 28 U.S.C. § 2244(d)(2) from the



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denial of his second state application for post-conviction relief

on June 30, 1999, until his application for supervisory writs was

filed on August 23, 1999.      Dixon v. Cain, 316 F.3d 553, 555-56 (5th

Cir. 2003).   In light of these additional tolling periods, we find

that not more than 347 days have passed from the time Osborne’s

state conviction became final and the date he filed his section

2254 petition.

     Upon granting Osborne’s application for a COA, we concluded

not only that Osborne had established that the district court may

have erred in dismissing his petition as untimely, but also that

Osborne had established that “jurists of reason would find it

debatable whether [Osborne’s] petition states a valid claim of the

denial of a constitutional right.”       See Slack v. Daniel, 120 S.Ct.

1595, 1599 (2000).     The district court, however, having found

Osborne’s petition time-barred, did not address the merits of

Osborne’s constitutional claims or of the respondent’s claims of

allegedly independent and adequate state law grounds for denial of

relief (e.g., La. Code Crim. P., art. 930.8).          Accordingly, we

VACATE the district court’s judgment dismissing Osborne’s petition

as time-barred, and REMAND for further proceedings, including a

determination by the district court of the validity of Osborne’s

underlying    constitutional    claims   and   respondent’s   claims   of

allegedly independent and adequate state grounds for denial of

relief.


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VACATED and REMANDED




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