* 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that this opinion should not be published and is not precedent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. 02-30924

Summary Calendar

 

ALLEN WAYNE GIBBS,

Petitioner-Appellant,

versus

WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee.

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

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 02-CV-309

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

January 31, 2003

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Allen Wayne Gibbs, Louisiana prisoner #394497, seeks a

certificate of appealability (COA) to appeal from the dismissal

of his 28 U.S.C. § 2254 habeas corpus application as time-barred

pursuant to 28 U.S.C. § 2244(d). Gibbs’s habeas application

challenges his state-court conviction of aggravated rape.

A COA may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2). This standard requires a showing “that
No. 02-30924

-2-

reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000). When a district court

denies 28 U.S.C. § 2254 relief on procedural grounds without

reaching the merits of the § 2254 application, this court should

grant a COA only if the COA movant makes the showing set out

above and shows that jurists of reason would find it debatable

whether the district court’s procedural ruling was correct. Id. 

Gibbs argues that only 356 days of the 365-day limitation

period of 28 U.S.C. § 2244(d)(1) expired before he filed his

federal habeas application. Gibbs’s conviction became final on

December 28, 1999, 90 days after the Supreme Court of Louisiana

denied his writ application on direct appeal. See Daniel

v. Cockrell, 283 F.3d 697, 705 (5th Cir.), cert. denied,

123 S. Ct. 286 (2002). The one-year limitations period was

tolled by Gibbs’s August 28, 2000, application for state

postconviction relief, 28 U.S.C. § 2244(d)(2), and it may have

remained tolled until the Supreme Court of Louisiana denied

Gibbs’s writ application on October 26, 2001. Melancon v. Kaylo,

259 F.3d 401, 406 (5th Cir. 2001). If that was the case, then

356 countable days elapsed between the date on which Gibbs’s

conviction became final and the date on which he served his

federal habeas corpus application. 

However, it is unclear from the current record whether

Gibbs’s state-court writ applications were timely filed and
No. 02-30924

-3-

whether any periods not excused from the one-year limitations

period due to untimely filings in state court rendered the

federal habeas application untimely. On remand, the district

court should examine the state-court record and determine whether

Gibbs’s state-court writ applications were timely. See LA. CT.

APP. UNIF. R. 4-2, 4-3; LA. S. CT. R. X § 5(a); see also Barnard

v. Barnard, 675 So. 2d 734, 734 (La. 1996). We note that Gibbs

does not himself allege that the state trial court reduced to

writing any order setting a return date for the filing of Gibbs’s

writ application in the Louisiana Court of Appeal, an act that

might have rendered the filing of that writ application timely,

thus tolling the federal limitations period. See Melancon,

259 F.3d at 407. It is out of an abundance of caution that we

grant a COA and remand the case for further consideration. 

Pursuant to Hall v. Cain, 216 F.3d 518 (5th Cir. 2000),

we have reviewed Gibbs’s underlying constitutional claims to

determine whether he has alleged a facially valid claim of the

denial of a constitutional right. Gibbs has alleged facially

valid claims of denials of constitutional rights; those claims

should be considered by the district court in the first instance. 

Cage v. Louisiana, 498 U.S. 39 (1990) (reasonable doubt

instruction); Strickland v. Washington, 466 U.S. 668, 689-94

(1984) (ineffective assistance); Johnson v. Puckett, 176 F.3d

809, 820 (5th Cir. 1999) (state court evidentiary rulings);
No. 02-30924

-4-

Johnson v. Puckett, 929 F.2d 1067, 1071-72 (5th Cir. 1991)

(discriminatory foreman-selection process). 

COA GRANTED. VACATED AND REMANDED.