Washington v. Cain

*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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31309
Summary Calendar
BRENT WASHINGTON,
Petitioner-Appellant,
versus
BURL CAIN, Warden,
Louisiana State Penitentiary,
Respondent-Appellee.
_________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 98-CV-584-H
_________________________________________
May 3, 2000
Before POLITZ, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Brent Washington, Louisiana prisoner # 102790, appeals the dismissal of his
habeas corpus application as time-barred by the one-year statute of limitations in 28
U.S.C. § 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act
of 1996. He contends that the district court erred in determining that his second

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2184 F.3d 467 (5th Cir. 1999)
3__ F.3d __, (5th Cir. April 7, 2000, No. 98-30444), 2000 WL 358294 at *2-3
2
state application for post-conviction relief, which the Louisiana Supreme Court
dismissed as untimely and repetitive, was not “properly filed” as that term is used in
§ 2244(d)(2), and that, as a consequence, the pendency of the application did not
toll the limitations period.
Our recent opinions in Villegas v. Johnson2 and Smith v. Ward3 reflect that
Washington’s second state application for post-conviction relief was, in fact,
properly filed for purposes of § 2244(d) and tolled the 28 U.S.C. § 2244(d)
limitations period. With this tolling, Washington’s federal habeas application is
timely. The judgment dismissing his § 2254 application as time-barred therefore is
VACATED, and the case is REMANDED for further proceedings consistent
herewith.

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