IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20639 USDC No. H-97-CV-1549

HERIBERTO DEL RIO,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

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Appeal from the United States District Court for the Southern District of Texas ---------------------

December 8, 1998

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Heriberto Del Rio, Texas prisoner #558956, seeks a

certificate of appealability (COA) from the denial of his

petition filed pursuant to

as untimely. He also

requests that he be allowed to proceed in forma pauperis (IFP) on

appeal. Del Rio’s request to proceed IFP is GRANTED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-20639 -2-

Del Rio argues that the district court erred in dismissing

his claims as barred by the one-year statute of limitations set

forth in § 2244(d)(1). Because Del Rio filed his § 2254 petition

on April 24, 1997, within one year of the effective date of the

Antiterrorism and Effective Death Penalty Act, his petition was

timely. See United States v. Flores,

(5th

Cir. 1998); Flanagan v. Johnson,

(5th Cir.

1998). COA is GRANTED, the district court’s judgment dismissing

Del Rio’s § 2254 petition as time-barred is VACATED, and the case

is REMANDED for further proceedings.

COA GRANTED; MOTION TO PROCEED IFP GRANTED; VACATED AND

REMANDED.