                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              April 19, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 04-60259
                          Summary Calendar



CLINTON L. CRESSIONNIE,

                                    Petitioner-Appellant,

versus

LAWRENCE KELLY,

                                    Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                    USDC No. 2:03-CV-422-RGU
                      --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Clinton L. Cressionnie, Mississippi prisoner # 22155,

appeals the district court’s dismissal of his 28 U.S.C. § 2254

application challenging his convictions for escape, grand

larceny, and petit larceny as time-barred.     This court has

granted Cressionnie a certificate of appealability on the limited

issue of whether his state habeas corpus application filed in the

state circuit court on November 19, 2001, tolled the statute of

limitations and made his 28 U.S.C. § 2254 application timely.

     *
       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this opinion should not be published and is not precedent except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. 04-60259
                                  -2-

See Cressionnie v. Cabana, No. 04-60259 (5th Cir. Oct. 26, 2004)

(unpublished).

     Cressionnie argues that his state habeas application was

properly filed under 28 U.S.C. § 2244(d)(2) and tolled the

statute of limitations during its pendency.    If the application

was not properly filed, he contends that the statute of

limitations was equitably tolled because he was actively misled

into believing that the application was properly filed.    The

respondent asserts that Cressionnie’s state habeas application

challenged his extradition from Florida to Mississippi to face

the charges for which he was convicted, that Cressionnie did not

have standing to bring that challenge, and that the state circuit

court, therefore, did not have jurisdiction to consider it,

making the application not properly filed under 28 U.S.C.

§ 2244(d)(2).

     The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

established “an explicit limitation period for state prisoners

filing federal habeas petitions.”    Fisher v. Johnson, 174 F.3d

710, 711 (5th Cir. 1999).    Under 28 U.S.C. § 2244(d)(1), a

prisoner has one year from the latest of various events,

including “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review,” to file a federal habeas petition.

28 U.S.C. § 2244(d)(1)(A).    The period during which a “properly

filed application for state post-conviction or other collateral
                           No. 04-60259
                                -3-

review” regarding the same conviction is pending is not counted

toward the one-year period.   28 U.S.C. § 2244(d)(2); Fields v.

Johnson, 159 F.3d 914, 916 (5th Cir. 1998).    This court reviews a

district court’s determination that a 28 U.S.C. § 2254

application was untimely de novo.    See Melancon v. Kaylo, 259

F.3d 401, 404 (5th Cir. 2001).

     The respondent’s argument misconstrues the relevant

precedent.   Whether the state circuit court had jurisdiction to

consider the claim raised by Cressionnie in his state habeas

application is irrelevant to the issue of whether the application

was properly filed; the relevant question was whether the state

circuit court had jurisdiction to consider the application

itself, regardless of whether it lacked jurisdiction to consider

the claims contained therein.    See Artuz v. Bennett, 531 U.S. 4,

8-11 (2000); Larry v. Dretke, 361 F.3d 890, 893 (5th Cir. 2004).

The state circuit court had jurisdiction to consider

Cressionnie’s state habeas application.    See MISS. CODE ANN. § 11-

43-7; Bubac v. Boston, 600 So. 2d 951, 953 (Miss. 1992).

Accordingly, Cressionnie’s state habeas application was properly

filed and tolled the statute of limitations pursuant to 28 U.S.C.

§ 2244(d)(2), making his 28 U.S.C. § 2254 application timely.

See Artuz, 531 U.S. at 8-11; Larry, 361 F.3d at 893.

     Therefore, the judgment of the district court is VACATED and

the case is REMANDED to the district court for further

proceedings.
                        No. 04-60259
                             -4-

VACATED AND REMANDED.
