IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-30428

Summary Calendar

JOHNNIE F. DIXON,

Petitioner-Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee.

Appeal from the United States District Court

for the Middle District of Louisiana

January 7, 2003

Before GARWOOD, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:

Johnnie F. Dixon, Louisiana prisoner no. 305653, appeals the

dismissal, as untimely, of his federal habeas application brought

under 28 U.S.C. § 2254. Dixon was convicted of first-degree murder

and sentenced to life in prison for killing his ex-wife. S ee State

v. Dixon

, 620 So. 2d 904, 906-07 (La. Ct. App. 1993). The district

court granted a Certificate of Appeala bility on whether the one

year limitation period of 28 U.S.C. § 2244(d) should have been

suspended “from the time the [state] trial judge denied [Dixon’s]2

application for post-conviction relief until the deadline the trial

judge set for filing an application for supervisory writs with the

court of appeal, even though that date was longer than the 30-day

period provided in La. Ct. App. Rule 4-3.”

The Supreme Court recently held that “[a state postconviction] appli cation is pending as long as the ordinary state

collateral review process is ‘in co ntinuance’–i.e., ‘until the

completion of’ that process.” C arey v. Saffold

, 122 S.Ct. 2134,

2138 (2002). “In other words, until the application has achieved

final resolution through the State’s post-conviction procedures, by

definition it remains ‘pending.’” Id .; see Melancon v. Kaylo , 259

F.3d 401, 406 (5th Cir. 2001). In M elancon

, a panel of this court

held that an application ceased to be “pending” when application to

the next level of state-court review was not timely made.

The state trial court in Dixon’s case denied his application

for post-conviction relief on August 12, 1999. Rule 4-3 of

Louisiana’s Uniform Rules, Courts of Appeal, provides that the

trial court must state “a reasonable time,” “not to exceed thirty

days,” in which the applicant must apply to the appellate court.

However, the rule further provides that “the trial court or the

appellate court may extend the time for filing the application upon

the filing of a motion for extension of r e turn date by the

applicant, filed within the original or an extended return date

period. . . .” L A

. C T

. A PP

. U NIFORM R ULE 4-3.1 The Court of Appeal on March 24, 2000 denied Dixon’s

application for supervisory writ on the merits; nothing in its

order suggests that it viewed Dixon’s application to it as having

been even arguably untimely ; the state has never taken the

position, either before any state court or at any time in this

federal habeas proceeding, that Dixon’s application for supervisory

writ to the Court of Appeal was untimely. It is undisputed, and

the Magistrate Judge and District Court below found, that less than

30 days following the decision of the Court of Appeal Dixon timely

applied for supervisory writs to the Supreme Court of Louisiana,

whic h on February 9, 2001 denied the application without any

explanation or comment.

3 A lthough Dixon filed his application for supervisory writs

more than thirty days after the denial of his original application

for relief, Dixon had both timely requested and received on

extension of the thirty day requirement. The state trial court

denied Dixon’s application for post-conviction relief on August 12,

1999; on August 20 or 23 Dixon filed in the trial court his “notice

of intent” to apply for supervisory writs to review that judgment

in which he requested that the court gr ant “leave to file his

application for supervi sory writs” and that “this Court set a

reasonable time of not less than sixty (60) days from the filing of

this notice for the writ application to be filed with the First

Circuit Court of Appeal.” By order of August 26, the trial court

both granted Dixon “leave to file his application for supervisory

writs” and ordered “that the application for supervisory writs be

filed with the First Circuit Court of Appeal by October 29, 1999.”

Dixon filed his application for supervisory writs wit h the First

Circuit Court of Appeal on October 20, 1999. 1

Louisiana courts consider the trial court’s setting of a2 See also Spangler v. Chias s on

, 681 So. 2d 956, 957 n.2 (La.

Ct. App., 1st Cir. 1996); Dutruch v. Zurich-American Ins. Co.

, 681

So. 2d 953, 954 n.2 (La. Ct. App., 1st Cir. 1996); C ausey v.

Caterpillar Machinery Corp.

, 822 So. 2d 188, 190 (La. Ct. App., 4th

Cir., 2002); Hester v. Hester

, 715 So. 2d 40, 42 (La. Ct. App., 4th

Cir. 1998).

4 return date later than thirty days to be an implicit extension of

the return date in accordance with Rule 4-3. See Brock v. Duhe

,

521 So. 2d 1162, 1162 (La. 1988). This is at least so when the

filing of the return date is pursuant to the appellant’s timely

request for a return date beyond the thirty day limit, as it was in

Dixon’s case:

“If the notice of intent to seek writs and/or a motion

and order requesting a return date was filed with the

trial court within 30 days of the ruling at issue, this

Court has interpreted a return date set outside the 30

day period as an implicit extension of the return date by

the trial court.” W atts v. Dorignac

, 681 So. 2d 955, 956

n.2 (La. Ct. App., 1st Cir., 1996). 2

Because Dixon timely both sought and obtained an extension of

the appeal period, his application to the Louisiana Court of Appeal

was not only timely filed but was never in an untimely status, and

his case is thus distinguished from Melancon

. Accordingly, all of

the time between the filin g of his initial state post-conviction

application and the Louisiana Supreme Court’s denial of relief was

tolled (it being undisputed that Dixon timely sought review in the

Louisiana Supreme Court of the decision of the Louisiana Court of

Appeal). In M

elancon this court agreed with the general rule “that

a state application is ‘pending’ during the intervals between the5

state court’s disposition of a state ha beas petition and the

petitioner’s timely filing of a petition for review at the next

level.” 259 F.3d at 406 (emphasis added). However, we held that

“Melancon no longer had an application [for post-conviction relief]

‘pending’ in state court when he failed to [timely] file an

application for a supervisory writ with the Court of Appeal and

failed to obtain an extension

. ” I d

. at 407 (emphasis added). A

subsequently granted extension merely served to allow tol l ing

during the time after the application for writs was actually filed

pursuant thereto. Id

.

In Melancon

, the Louisiana trial court denied post-conviction

relief o n December 9, 1997, and the application for supervisory

writs was not filed with the Louisiana Court of Appeal until May 8,

1998. Id . at 403. We observed that “[w]hile the trial court set

the return date as May 8, 1998, it did not extend the time for

filing the application.” I d

. at 404 n.2. The opinion of the

Louisiana Court of Appeal in that case, State v. Melancon

, No. 98-

K-1139 (La. Ct. App. 4th Cir. Aug. 13, 1998) (unpublished), a copy

of which is attached to the appellant’s brief in this court in

Melancon , states as follows:

“This writ appears to be untimely. The [trial]

court ruled on December 9, 1997. The only evidence of a

return date is the written notice of intent which was

signed by the trial court on what appears to be either

May 6th or May 8th, 1998. The return date was set for

May 8, 1998, the date this writ was filed in this Court.

Rule 4-3, Uniform Rules of th e Courts of Appeal6

requires that an original return date be not more than

thirty days from the date of the ruling at issue. Here,

the return date is approxima t ely five months later.

There is no indication that an earlier return date was

set and then extensions were gra n ted. Nonetheless,

because this Court ordered the evidentiary hear ing in

response to def endant relator’s pro se writ, we will

consider the merits of the relator’s claim.”

We have reviewed the record and briefs in Melancon and there

is nothing to indicate or suggest that the prisoner there ever, or

ever during th e thirty days next following the trial court’s

December 9, 1997, denial of relief, sought any extension or

enlargement of the thirty day period provided in Rule 4-3 or filed

any notice of intent to seek writs and/o r any motion and order

requesting a return date. Thus, in Melancon when the thirty days

expired there was neither any order extending or fixing the return

date to or at a time later than the thirty day period nor was there

pending any undisposed of motion for any such relief, and no

supervisory writ application had been filed. Thus Melancon’s writ

application ceased to be pending at the expiration of the thirty

days. Here, by contrast, when the thirty days expired, the time

for filing the supervisory writ application had already been fixed

for a later date pursuant to Dixon’s previously filed motion for

such reli ef, and Dixon’s supervisory writ application was filed

prior to that thus fixed later date. Accordingly, Dixon’s

application for post-conviction relief remained “p ending” at all

times from its initial filing until its final disposition by the

Louisiana Supreme Court; it was never in an untimely status.7

Under the correct calcu l ation, only 362 unsuspended days

passed between the date Dixon’s conviction became final and date he

filed his 28 U.S.C. § 2254 petition; thus, his petition was timely.

28 U.S.C. § 2244(d).

The judgment of the district court is VACATED and the case

REMANDED for further consideration of Dixon’s claims.

VACATED and REMANDED.