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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30444
_____________________
RODNEY SMITH,
Petitioner-Appellant,
versus
KELLY WARD, Warden, Wade Correctional
Center; RICHARD IEYOUB, Attorney General,
State of Louisiana,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
April 7, 2000
Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Rodney Smith's federal habeas application having been
dismissed as untimely under 28 U.S.C. § 2244(d)(1)(A), at issue is
whether his state habeas application, denied as time-barred
pursuant to LA. CODE CRIM. P. art. 930.8, was "properly filed",
within the meaning of § 2244(d)(2), so that the period for filing
his federal application was tolled. We VACATE and REMAND.
I.
In 1988, convicted by a Louisiana jury for possession of
stolen things, Smith was sentenced to two years probation. He
pleaded guilty in 1990 to three armed robberies, and was sentenced
to two concurrent 24-year terms of imprisonment and one concurrent
18-year term of imprisonment. In addition, his probation was

revoked; he was ordered to serve a two-year term of imprisonment
consecutive to the 18-year armed robbery sentence.
In May 1996, Smith filed a state application for post-
conviction relief, challenging the 1988 conviction. The petition
was denied as time-barred by the state trial court. Smith's appeal
was rejected by the intermediate appellate court, and, in October
1997, the Louisiana Supreme Court denied his application for a writ
of review. State ex rel. Smith v. State, 703 So. 2d 600 (La. 1997)
(citing LA. CODE CRIM. P. art. 930.8).
In January 1998, pursuant to 28 U.S.C. § 2254, Smith filed his
federal habeas application, challenging the 1988 conviction.1 The
magistrate judge recommended dismissal as time-barred under 28
U.S.C. § 2244(d)(1). The district court overruled Smith's
objections, adopted the findings and recommendation, and dismissed
the application. It granted a certificate of appealability (COA)
on whether Smith timely filed his federal application. See 28
U.S.C. § 2253 (habeas claim cannot be reviewed on appeal unless
circuit justice or judge granted a COA for that claim).
II.
The Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA), established a one-year
limitation period for state prisoners to file federal habeas
applications. 28 U.S.C. § 2244(d)(1). And, pursuant to §
2244(d)(2), not counted toward that one-year period is the period
1Smith signed the application on 5 December 1997. It was
filed in the Middle District of Louisiana on 6 January 1998, and
transferred to the Eastern District by order dated 9 January 1998.
2

during which a "properly filed" state habeas application regarding
the same conviction and sentence is pending. See 28 U.S.C. §
2244(d)(2).
Federal habeas applicants, such as Smith, whose convictions
became final prior to AEDPA's 24 April 1996 enactment, had until 24
April 1997 to file a federal habeas application. See Flanagan v.
Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998). For such
applicants, the § 2244(d)(2) tolling provision is applicable to
this one-year period for filing following AEDPA's effective date.
See Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998).
Smith's state application was pending from 23 May 1996 through
10 October 1997. If the time during which it was pending triggers
the § 2244(d)(2) tolling provision, then Smith's federal
application, filed in January 1998, would be timely under §
2244(d)(1), as interpreted by our precedent.
The district court held, however, that, because the state
application was held time-barred under state law, it had not been
"properly filed" for § 2244(d)(2) purposes, and thus did not toll
the AEDPA one-year limitation period.
Subsequent to the district court's decision, our court
interpreted § 2244(d)(2) in Villegas v. Johnson, 184 F.3d 467 (5th
Cir. 1999), and held that, for § 2244(d)(2) purposes, and "based on
principles of statutory construction and concerns regarding comity
and exhaustion", a state habeas application is "properly filed"
when it "conforms with a state's applicable procedural filing
requirements". Id. at 470. The court explained: "By procedural
3

filing requirements, we mean those prerequisites that must be
satisfied before a state court will allow a petition to be filed
and accorded some level of judicial review". Id. at 470 n.2
(emphasis added).
Applying that rule, the Villegas court, id. at 473, determined
that a Texas prisoner's state habeas application was properly filed
within the meaning of § 2244(d)(2), even though it had been
dismissed pursuant to TEX. CODE CRIM. P. ANN. art. 11.07, § 4. That
provision precludes consideration of a successive habeas
application unless it contains specific facts establishing that the
factual or legal basis for the claim was unavailable when the
previous application was filed, or that, "but for a violation of
the United States Constitution no rational juror could have found
the applicant guilty beyond a reasonable doubt". TEX. CODE CRIM. P.
ANN. art. 11.07, § 4(a)(2) (West Supp. 2000).
Our court observed in Villegas that, although a Texas state
court "will not automatically consider the merits of claims raised
in a successive petition, it will accept the petition for filing
and review the application to determine whether the statutory
exceptions are met"; and, "[i]f the successive petition does not
fit within an exception, the state court will dismiss it". See
Villegas, 185 F.3d at 472 n.4. Our court concluded that, instead
of imposing an absolute bar to filing a successive application,
article 11.07, § 4, merely discourages them by limiting the
availability of relief; and, as such, it is not a "procedural
filing requirement" which would render an application improperly
4

filed for § 2244(d)(2) purposes. See Villegas, 185 F.3d at 472
n.4.
Smith's state application was dismissed as time-barred,
pursuant to LA. CODE CRIM. P. art. 930.8A (West 1997), which imposed
a three-year limit for filing such applications.2 Article 930.8A
allows a Louisiana state court to consider the merits of a
prisoner's untimely application if, inter alia, "[t]he application
alleges, and the petitioner proves or the state admits, that the
facts upon which the claim is predicated were not known to the
petitioner or his attorney", or the application raises a claim that
is "based upon a final ruling of an appellate court establishing a
theretofore unknown interpretation of constitutional law and
petitioner establishes that this interpretation is retroactively
applicable to his case, and the petition is filed within one year
of the finality of such ruling". See LA. CODE CRIM. P. art.
930.8A(1) and (2).
On its face, article 930.8A is arguably a time-based
procedural filing requirement of the sort which, under Villegas,
would render an application dismissed on that basis as having been
not "properly filed". See Villegas, 184 F.3d at 469 ("a properly
filed application is one submitted according to the state's
procedural requirements, such as the rules governing ... the time
and place of filing" (emphasis added; internal quotation marks and
citation omitted)). On the other hand, article 930.8A, like the
2In 1999, the filing period for such applications was reduced
to two years. See LA. CODE CRIM. P. art. 930.8A (West Supp. 2000).
5

Texas successive writ statute at issue in Villegas, does not impose
an absolute bar to filing; instead, it limits the state court's
ability to grant relief.
Under article 930.8A, Louisiana courts will accept a
prisoner's application for filing and review it to determine
whether any of the statutory exceptions to untimely filing are
applicable. If the untimely application does not fit within an
exception, the state court will dismiss it. See State v. Parker,
711 So. 2d 694, 695 (La. 1998) (denying untimely application for
post-conviction relief because statutory exceptions inapplicable).
Because the procedure established by article 930.8A is
virtually identical to that under TEX. CODE CRIM. P. art. 11.07, § 4,
we conclude that, consistent with Villegas, Smith's state
application, although ultimately determined by the state court to
be time-barred, nevertheless was "properly filed" within the
meaning of § 2244(d)(2). Accordingly, the one-year period for
seeking federal habeas relief was tolled during the pendency of
that state application, making timely the federal application filed
in January 1998.
III.
For the foregoing reasons, the judgment is VACATED, and the
case is REMANDED for further proceedings.
VACATED and REMANDED
6