* 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opinion should not be published and is not precedent except under the limited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. 98-10942

Summary Calendar

 

RALPH EDWARD JONES,

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

USDC No. 5:97-CV-270

--------------------

September 18, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Ralph Edward Jones, Texas prisoner # 768901, appeals the

district court’s denial of his petition for habeas relief under 28

U.S.C. § 2254. The court addressed one issue on the merits and

dismissed the rest as barred by the one-year limitations period of

28 U.S.C. § 2244(d)(1), or alternatively as barred by the

procedural-default doctrine. This court granted a certificate of

appealability (COA) on the issues whether the district court

properly applied the limitations period and the procedural-default
No. 98-10942

-2-

doctrine and whether the district court properly analyzed the

merits of Jones’s jail-time credit claim.

A review of the record and the applicable law reveals

that Jones’s federal habeas petition was timely filed. It was

filed within two days of the end of the one-year grace period. See

Sonnier v. Johnson, 161 F.3d 941, 945 (5th Cir. 1998); Houston v.

Lack, 487 U.S. 266, 276 (1988). Moreover, Jones’s second state

habeas application, which was pending when Jones filed his federal

petition, would serve to toll the limitations period even if

dismissed by the state courts as successive. See Villegas v.

Johnson, 184 F.3d 467, 469-73 (5th Cir. 1999). Jones’s petition

therefore is not barred from review by the statute of limitations.

The district court also relied on a belief that the state

court dismissed Jones’s second habeas petition for abuse of the

writ, which would result in a refusal by this court to address the

merits of these claims under the procedural-default doctrine.

However, the language of the order by the Texas Court of Criminal

Appeals states that Jones’s application was denied, rather than

dismissed. This language implies that the court considered the

merits of Jones’s claims. See Ex Parte Torres, 943 S.W.2d 469, 474

(Tex. Crim. App. 1997)(en banc); Bledsue v. Johnson, 188 F.3d 250,

256 (5th Cir. 1999). Therefore, the claims raised by Jones in his

petition are not barred from review by the procedural default

doctrine. The district court’s opinion is VACATED to the extent it

relies on the one-year limitations period and on procedural

default, and the case is REMANDED for review of the merits of

Jones’s claims.
No. 98-10942

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However, the district court correctly found that Jones’s

jail-credit claim did not state a violation of federal

constitutional law. There is no federal constitutional right to

credit for time served before sentence is imposed unless a

prisoner’s indigence prevents him from making bond and he receives

a maximum possible sentence for his crime. Jackson v. Alabama, 530

F.2d 1231, 1236 (5th Cir. 1976). As the district court properly

found, Jones was not serving the maximum sentence for his offense.

See TEX. PENAL CODE ANN. §§ 19.04(d), 12.33 (West 1974). Jones

asserts on appeal that he is entitled to credit for time served

because he suffered from violations of the Equal Protection clause

and of Brady. Because the court did not grant COA on these issues,

they are not properly before the court. Lackey v. Johnson, 116

F.3d 149, 151-52 (5th Cir. 1997). The district court’s denial of

relief on the jail-credit claim is AFFIRMED.

AFFIRM IN PART, VACATE AND REMAND IN PART.