           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                     No. 06-30561                           F I L E D
                                   Summary Calendar
                                                                           October 1, 2007

                                                                        Charles R. Fulbruge III
ROY LEE HUGHES, II                                                              Clerk

                                                  Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                   03-CV-792


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Roy Lee Hughes, II, Louisiana prisoner # 122877, was convicted in state
court of armed robbery and kidnaping and was sentenced to life imprisonment.
See State v. Williams, 747 So.2d 1256 (La. App.2d Cir. 1999). In May 2003,
Hughes filed a 28 U.S.C. § 2254 petition in the district court. The district court
dismissed the petition as untimely. The court concluded that because Hughes
did not file a timely writ application in the Louisiana Supreme Court, none of his


       *
        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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-30561

subsequent filings tolled the limitations period and, thus, his petition was not
filed within one year as required under the AEDPA.
      Hughes was granted a certificate of appealability on the issue whether the
district court erred in dismissing his § 2254 petition as untimely.          The
Respondent was directed to address, inter alia, the effect of an extension letter
from the Louisiana Supreme Court, submitted by Hughes, on the timeliness of
Hughes’s § 2254 petition. We review the district court’s determination that
Hughes’s petition was untimely de novo. See Melancon v. Kaylo, 259 F.3d 401,
404 (5th Cir. 2001).
      Under La. Sup. Ct. R. X, § 5(a), a petitioner must file a writ application
in the Louisiana Supreme Court “within thirty days of the mailing of the notice
of the original judgment of the court of appeal.” The Rule also provides that “No
extension of time therefor will be granted.” However, the Respondent now
concedes that extensions are “in fact granted,” and this “is apparently done
routinely, possibly pursuant to Louisiana Supreme Court Rule[] X, Section 5.(b).”
The Respondent also concedes that because Hughes had been granted an
extension by the Louisiana Supreme Court, his§ 2254 petition is timely, and the
matter should be remanded to the district court for review on the merits.
      Hughes has demonstrated that the district court erred in concluding that
his petition was untimely.     Accordingly, we VACATE the judgment and
REMAND the case to the district court for a determination of the merits of his
petition. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).




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