IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50034 Summary Calendar

VICTOR CARR,

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-498 --------------------

November 17, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Victor Carr, Texas prisoner Number 625996, seeks a

certificate of appealability (COA) to appeal from the district

court’s dismissal of his

petition as time-

barred. We GRANT COA with regard to the issue whether Carr’s

petition was time-barred under

(d). Although

Carr’s second state habeas application was dismissed by the Texas

courts as an abuse of the writ, it was nevertheless properly

filed and thus tolled the applicable limitation period.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-50034 -2-

Villegas v. Johnson,

(5th Cir. 1999). With the

benefit of the resulting toll, Carr’s federal habeas petition was

filed within the limitations period established by the AEDPA.

See

Accordingly, COA is GRANTED, the judgment of the

district court is VACATED, and the case is REMANDED for further

proceedings.