*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this opinion should not be published and is not precedent except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. 99-50431

Summary Calendar

_____________________

ROY MENDOZA GARCIA,

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 Western District of Texas

(DR-97-CV-70)

_________________________________________________________________

August 22, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Roy Mendoza Garcia, Texas state prisoner # 653796, appeals the

dismissal, as time-barred under 28 U.S.C. § 2244(d), of his 28

U.S.C. § 2254 habeas petition. He contends the district court so

erred because the pendency of his state habeas application tolled

the one-year grace period following 24 April 1996. The respondent

confesses error, asserting that the pendency of Garcia’s state

application, which he attempted to file on 21 June 1996, and filed
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on 22 October 1996, tolled the grace period.

Section 2244(d)(1)(A) provides that a habeas petitioner has

one year from the date that his conviction becomes final, by the

conclusion of direct review or upon the expiration of the time for

seeking such review, to file a habeas application. The time during

which a properly filed application for state post-conviction relief

is pending is not counted toward any period of limitations under

this statute. See § 2244(d)(2). State prisoners whose convictions

have become final before the 24 April 1996, effective date of the

Anti-Terrorism and Effective Death Penalty Act (AEDPA) must be

accorded a reasonable time — the one-year grace period — after

AEDPA’s effective date, within which to file habeas petitions.

Flanagan v. Johnson, 154 F.3d 196, 199-200 & n.2 (5th Cir. 1998).

The § 2244(d)(2) tolling provision applies to the grace period.

Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998).

Because Garcia’s convictions became final before AEDPA’s

enactment, he was entitled to the one-year grace period, which

expired on 24 April 1997. See Flanagan, 154 F.3d at 199-200. Even

assuming Garcia’s state habeas application filed 21 June 1996, was

not “properly filed” for § 2244(d)(2) purposes, his application

filed 22 October 1996, which may remain pending, tolled the grace

period. See Fields, 159 F.3d at 916. 

The judgment of the district court dismissing Garcia’s habeas

petition as time-barred is VACATED and the case is REMANDED for the
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court to determine whether Garcia’s federal habeas petition should

be dismissed as premature, pending exhaustion of state remedies. 

Garcia requests reimbursement of the $105 appellate filing fee

and sanctions against the respondent of twice the amount of the

filing fee. This court granted Garcia’s motion for leave to

proceed on appeal in forma pauperis, and he thus has not paid an

appellate filing fee. His reimbursement and sanctions requests are

DENIED.

VACATED and REMANDED