Nall v. Ward

*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this opinion should not be published and is not precedent except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.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30822
Summary Calendar
_____________________
DENNIS NALL,
Petitioner-Appellant,
versus
KELLY WARD, Warden,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(98-CV-203)
_________________________________________________________________
July 5, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Dennis Nall, Louisiana prisoner # 105494, appeals, pro se, the
dismissal of his 28 U.S.C. § 2254 petition as time-barred by the
one-year statute of limitations set forth in 28 U.S.C.
§ 2244(d)(1). Nall contends that the district court erred in
determining that his state application for post-conviction relief,
dismissed as untimely pursuant to LA. CODE CRIM. P. art. 930.8, see
Nall v. State, 703 So. 2d 14 (La. 1997), was not “properly filed”,
as that term is used in § 2244(d)(2).
Subsequent to the dismissal of Nall’s application by the
district court, our court issued opinions in Villegas v. Johnson,
184 F.3d 467, 469 (5th Cir. 1999) (state habeas application,

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dismissed as successive pursuant to TEX. CODE CRIM. P. ANN. art.
11.07, § 4, “properly filed” within meaning of § 2244(d)(2)), and
Smith v. Ward, 209 F.3d 383, 385 (5th Cir. 2000) (state application
for post-conviction relief, denied as time-barred pursuant to LA.
CODE CRIM. P. art. 930.8, “properly filed” within meaning of §
2244(d)(2)). Under Villegas and Smith, Nall’s state application
for post-conviction relief was “properly filed” for purposes of
§ 2244(d)(2) and should have tolled the § 2244(d)(1) limitations
period. Accordingly, the judgment dismissing Nall’s § 2254
application as time-barred is VACATED, and the case is REMANDED for
further proceedings consistent with this opinion.
VACATED and REMANDED

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