IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-51029

JOE EPPERSON,

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 USDC No. A-97-CV-533 - - - - - - - - - -

February 19, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Joe Epperson, Texas prisoner # 588235, seeks a certificate

of appealability (“COA”) for an appeal from the district court’s

dismissal of his

application as barred by

limitations. See

(c)(1)(A). COA will be granted

only if Epperson makes a substantial showing of the denial of a

federal right.

(c)(2). When the underlying

issue is not of constitutional dimension, as in this COA

application, the prisoner must first make a credible showing that

the district court erred before this court will consider whether

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-51029 - 2 -

he has made a substantial showing of the denial of a

constitutional right. See Murphy v. Johnson,

(5th Cir. 1997).

A one-year period of limitation applies to applications for

a writ of habeas corpus by persons in custody pursuant to the

judgment of a State court.

(d)(1). A habeas

applicant whose claims otherwise would be time-barred because the

limitations period would have expired before the effective date

of the AEDPA had until April 24, 1997, to file his habeas

application. Flanagan v. Johnson,

(5th Cir.

1998). Because Epperson’s conviction became final prior to the

effective date of the AEDPA, without tolling, Epperson had until

April 24, 1997, to file his § 2254 application. Epperson’s

habeas application was filed after that date.

Under § 2244(d)(2), the period during which an application

for state habeas corpus relief regarding the same conviction and

sentence is pending is not counted towards the one-year statutory

limitations period in § 2244(d)(1). See Fields v. Johnson,

(5th Cir. 1998). Because Epperson’s state

postconviction proceeding was pending for 98 days during the year

following April 24, 1996, Epperson had 98 days past April 24,

1997, within which to file his habeas application in the district

court. His June 16, 1997, habeas application was filed within

that time. COA is GRANTED as to this issue only.

This court lacks jurisdiction to consider the merits of

Epperson’s unaddressed underlying habeas corpus claims. See

Whitehead v. Johnson,

(5th Cir. 1998). No. 97-51029 - 3 -

Accordingly, the district court’s judgment is VACATED and the

case is REMANDED for further proceedings.

COA GRANTED; VACATED AND REMANDED.