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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 98-10012
______________________
MICHAEL WAYNE FIELDS,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
October 28, 1998
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:
Our court having held in Flanagan v. Johnson, 154 F. 3d 196
(5th Cir. 1998) and U.S. v. Flores, 135 F.3d 1000 (5th Cir. 1998),
that 28 U.S.C. з 2254 federal habeas applicants and 28 U.S.C. з
2255 movants whose claims would have been otherwise time-barred
immediately as of the enactment of the one-year limitations period
in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA), instead have one
year following AEDPA's effective date to file their applications,
at issue is whether this one year is tolled pending the pursuit of

state habeas relief, as per 28 U.S.C. з 2244(d)(2). We hold that
it is.
Michael Wayne Fields, Texas prisoner #645761, appeals the
dismissal as time-barred of his з 2254 habeas application. We
VACATE and REMAND for further proceedings.
I.
In June 1993, Fields was convicted in Texas state court for
unlawful delivery of a controlled substance and was sentenced to
prison for approximately 15 years. He did not pursue a direct
appeal.
AEDPA became effective on 24 April 1996. On 13 November of
that year, Fields filed for state habeas relief, claiming
ineffective assistance of counsel regarding the possibility of a
direct appeal. That petition was denied by the Texas Court of
Criminal Appeals on 12 February 1997, 91 days after the initial
filing.
On 19 May 1997, Fields filed for habeas relief in federal
court, pursuant to 28 U.S.C. з 2254, again claiming ineffective
assistance of counsel. The application was dismissed as time-
barred. (Fields' motion for appointment of counsel on appeal is
DENIED.)
II.
AEDPA instituted for the first time a limitations period for
state prisoner habeas applications under 28 U.S.C. з 2254 and for
2

federal prisoner motions for reconsideration of sentence under 28
U.S.C. з 2255. See 28 U.S.C. зз 2244 (state prisoners) and 2255
(federal prisoners); Flanagan, 154 F.3d at 198; Davis v. Johnson,
___ F.3d ___ (5th Cir. 1998) (98-20507) (holding that AEDPA
limitations period is statute of limitations subject to equitable
tolling, not jurisdictional statute of repose). For state
prisoners, 28 U.S.C. з 2244, as modified by AEDPA, provides in
pertinent part:
(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;
(B) the date on which
the
impediment to filing an application created by
State action in violation of the Constitution
or laws of the United States is removed, if
the applicant was prevented from filing by
such State action;
(C)
the date on which the
constitutional right asserted was initially
recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review; or
(D)
the date on which the factual
predicate of the claim or claims presented
could have been discovered through the
exercise of due diligence.
(2)
The time during which a properly
filed application for State post-conviction or
3

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.
28 U.S.C. з 2244(d) (emphasis added). (The limitations provision
for з 2255 motions is found in that section.)
Courts applying AEDPA's new limitations period faced
retroactivity concerns regarding prisoners, like Fields, convicted
before AEDPA's 24 April 1996 effective date. Lindh v. Murphy, 521
U.S. 320 (1997), held that AEDPA applies only to applications filed
after AEDPA's effective date. Fields falls into this category; he
filed his habeas application in 1997.
Courts also faced applicants whose one-year time limit had
already run before AEDPA became effective. Fields also falls into
this category; the time for his state appeal lapsed in July 1993,
TEX. R. APP. P. 202(b); therefore, the з 2244(d)(1) period would
have expired in July 1994.
But, in Flores, 135 F.3d at 1002-05, considering a з 2255
movant, our court joined several sister circuits in granting such
otherwise-time-barred prisoners a "reasonable" length of time to
file such motions. See Ross v. Artuz, 150 F.3d 97, 101 (2d Cir.
1998); Joseph v. McGinnnis, 150 F.3d 103, 104 (2d Cir. 1998);
Mickens v. United States, 148 F.3d 145, 147-48 (2d Cir. 1998); Rosa
v. Senkowski, 148 F.3d 134, 135-36 (2d Cir. 1998); Peterson v.
Demskie, 107 F.3d 92, 92-93 (2d Cir. 1997); Burns v. Morton, 134
4

F.3d 109, 111 (3d Cir. 1998); Brown v. Angelone, 150 F.3d 370, 374-
75 (4th Cir. 1998); O'Connor v. United States, 133 F.3d 548, 550
(7th Cir. 1998); Lindh v. Murphy, 96 F.3d 856, 865-66 (7th Cir.
1996), rev'd on other grounds, 521 U.S. 320 (1997); Calderon v.
United States District Court for the Central District of
California, 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 118
S. Ct. 899 (1998); Miller v. Marr, 141 F.3d 976, 977 (10th Cir.
1998), petition for cert. filed, no. 98-5195; U.S. v. Simmonds, 111
F.3d 737, 745-46 (10th Cir. 1997).
Flores based its "reasonableness period" on the holding of
Hanner v. State of Mississippi, 833 F.2d 55 (5th Cir. 1987), and
Culbreth v. Downing, 28 S.E. 294 (N.C. 1897), that claims accruing
before a change in a limitations period must be filed within the
shorter of (1) the time allowed by the old limitation period,
running from the claim's accrual, and (2) the time allowed by the
new limitation period, running from the time of the change.
Flores, 135 F.3d at 1005, 1006 (quoting Culbreth, 28 S.E. at 296,
and Hanner, 833 F.2d at 59). Because, pre-AEDPA, з 2255 motions
were not subject to a limitations period, AEDPA's limitations
period amounted to the new statute of limitations period running
from 24 April 1996.
Flanagan clarified the Flores period in two ways. First, the
reasonableness period applies to з 2254 applications as well as to
5

з 2255 motions. Flanagan, 154 F.3d at 200 n.2; cf. Flores, 135 F.3d
at 1002 n.7. Second, the period does not include the day of
AEDPA's enactment, Flanagan, 154 F.3d at 200-02; accordingly,
applications filed on 24 April 1997 are timely.
As quoted earlier, з 2244(d)(2) provides:
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.
We now further clarify the Flores/Flanagan rule and hold that the
з 2244(d)(2) tolling provision applies to the reasonableness
period. This result accords with Davis, which allows equitable
tolling of the one-year period. Needless to say, in that equitable
tolling may modify the strict one-year limit, so too must the
tolling mandated by AEDPA. Accord Hoggro v. Boone, 150 F.3d 1223,
1225-27 (10th Cir. 1998); Lovasz v. Vaughn, 134 F.3d 146, 148-49
(3rd Cir. 1998); see also Brewer v. Johnson, 139 F.3d 491, 493 (5th
Cir. 1998).
III.
Because Fields' state post-conviction proceeding was pending
for 91 days during the year following 24 April 1996, the effective
date of AEDPA, he had 91 days past 24 April 1997 in which to file
his first з 2254 application. His 19 May 1997 application was
6