IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50106 Summary Calendar

SERGIO RENE SALAZAR, also known as Samuel Avila,

Petitioner-Appellant,

versus

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

Respondents-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-97-CV-241 - - - - - - - - - -

November 10, 1999

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

PER CURIAM:*

Sergio Rene Salazar, Texas state prisoner # 533820, appeals

from the district court’s dismissal of his

petition as time-barred under

(d). Salazar’s

motion for appointment of counsel on appeal is DENIED, and his

motion for leave to file a supplemental brief 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-50106 -2-

Salazar argues that the district court erred in dismissing

his habeas petition as time-barred because the pendency of his

third state habeas application tolled the limitations period

under § 2244(d)(2). Because Salazar’s conviction became final

prior to the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Salazar had until April 24,

1997, to file his § 2254 petition unless the period was tolled

pursuant to § 2244(d)(2). Flanagan v. Johnson,

(5th Cir. 1998); United States v. Flores,

(5th Cir. 1998) (

case), cert. denied,

(1999).

Under § 2244(d)(2), the period during which a “properly

filed” application for state habeas corpus relief is pending is

not counted towards the one-year statutory limitation period in

§ 2244(d)(1). See § 2244(d)(2). Section 2244(d)(2)’s tolling

provision applies to the one-year “reasonableness” period under

Flores and Flanagan. See Fields v. Johnson,

(5th Cir. 1998). In light of this court’s recent decision in

Villegas v. Johnson,

(5th Cir. 1999), the filing of

Salazar’s third state habeas petition served to toll the one-year

limitations period under § 2244(d)(2). Id. at 473.

Salazar’s third state habeas petition was pending from May

13, 1996, through July 31, 1996, or approximately 79 days.

Salazar therefore had 79 days after the April 24, 1997, deadline

to file a timely federal habeas petition, or until July 14, 1997,

because the 79th day (July 12, 1997) was a Saturday. Salazar’s

petition, whether filed on July 3, 1997, or July 8, 1997, for No. 98-50106 -3-

limitations purposes, was thus filed within the 79-day extended

reasonableness period. Accordingly, the district court’s

judgment denying Salazar’s § 2254 petition as time-barred is

VACATED, and this case REMANDED for further proceedings

consistent with this opinion.

VACATED AND REMANDED. APPOINTMENT OF COUNSEL DENIED.

SUPPLEMENTAL BRIEF GRANTED.