* 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that this opinion should not be published and is not precedent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. 99-31278

(Summary Calendar)

 

EDWARD LAMBAS,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

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

Appeal from the United States District Court

for the Eastern District of Louisiana

(98-CV-1791-C)

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

July 25, 2000

Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Edward Lambas, Louisiana prisoner #

127561, seeks a certificate of appealability (COA) to appeal 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. The

district court determined that Lambas’s state application for postconviction relief, which was filed in July 1996 and dismissed as

untimely pursuant to Louisiana Code of Criminal Procedure article

930.8, was not “properly filed” as that term is used in
2

§ 2244(d)(2), and thus, failed to toll the limitations period. The

district court also determined that the state application for postconviction relief which Lambas asserted that he filed in May 1995

was not filed timely pursuant to article 930.8 and thus was not

“properly filed” and did not toll the § 2244(d) limitations period.

Subsequent to the district court’s dismissal of Lambas’s

§ 2254 petition, we held that a state post-conviction application,

dismissed as untimely under article 930.8, was nevertheless

"properly filed" for purposes of the tolling provision of §

2244(d)(2). Smith v. Ward, 209 F.3d 383, 385 (5th Cir. 2000). See

also Villegas v. Johnson, 184 F.3d 467, 469-70 (5th Cir. 1999). In

light of Smith, we must hold that the district court erred in

finding that Lambas’s July 1996 post-conviction application,

dismissed as time-barred, was not properly filed and in holding

that the pendency of that application did not toll the

reasonableness period. Thus, Lambas has established that district

court erred as a matter of law by dismissing his petition as

untimely on this basis. See Slack v. McDaniel, ___ U.S. ___, 120

S. Ct. 1595, 1604 (April 26, 2000). The court also erred in

finding that the application which Lambas asserted he filed in May

1995 was not “properly filed” because it was untimely under state

law; however, there is no evidence in the record that this

application was ever filed. 

A COA is therefore granted, the district court’s judgment of

dismissal is vacated, and the case is remanded to the district

court for determination whether the mandamus application was a
3

continuation of the post-conviction proceeding and for factual

determination of the dates during which Lambas’s state postconviction application was pending. The district court should then

reevaluate, in light of Smith, whether the pendency of Lambas’s

state post-conviction application tolled the § 2244(d) limitations

period long enough for his June 8, 1998, § 2254 petition to be

deemed timely filed. See Whitehead v. Johnson, 157 F.3d 384, 388

(5th Cir. 1998)(granting COA, vacating district court dismissal of

case for failure to exhaust state remedies, and remanding without

briefing); Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir.

Unit B 1980) (granting a certificate of probable cause and

remanding case to district court for factual findings).

COA GRANTED; JUDGMENT VACATED; CASE REMANDED WITH INSTRUCTIONS.