No. 99-60480 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60480 Summary Calendar

JIMMIE L. JOHNSON,

Petitioner-Appellant,

versus

MISSISSIPPI DEPARTMENT OF CORRECTIONS; JAMES V. ANDERSON, Superintendent, Mississippi State Penitentiary; MOORE, Attorney General of the State of Mississippi,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:99-CV-80-S-B -------------------- March 21, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Jimmie Johnson (“Johnson”), Mississippi prisoner # 23689,

moves for leave to proceed in forma pauperis (“IFP”) and a

certificate of appealability (“COA”) from the district court’s

dismissal of his

as time-barred. To obtain a

COA, he must make a substantial showing of the denial of a

constitutional right. See

(c)(2). In order to

obtain a COA for nonconstitutional issues, however, Johnson must

make a credible showing that the district court erred in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-60480 -2-

dismissing his petition as time-barred. See Sonnier v. Johnson,

(5th Cir. 1998).

Johnson contends that the district court erred in dismissing

his § 2254 petition as time-barred. A state prisoner filing a

§ 2254 petition has one year from the date that his conviction

becomes final by the conclusion of direct review or the

expiration of the time for seeking such review to file his

petition.

(d)(1)(A). The time during which a

“properly filed application” for state postconviction relief or

other collateral review is pending is not counted. See

(d)(2). Johnson’s argument that the district court erred

by failing to toll the limitations period for the time during

which his application for state postconviction relief was pending

because it mistakenly concluded that his application was not

“properly filed” makes a credible showing that the district court

erred in dismissing his petition as time-barred. See Villegas v.

Johnson,

(5th Cir. 1999) (“[A] successive state

application or one containing procedurally barred claims” is not

“per se improperly filed.”). Accordingly, we GRANT his motions

for leave to proceed IFP and a COA, VACATE the district court’s

order of dismissal and judgment, and REMAND the case to the

district court for further proceedings.

COA and IFP GRANTED; VACATED AND REMANDED.