IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30203 Summary Calendar

ANTHONY JUNAK,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CV-1954-M -------------------- August 4, 2000 Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Anthony Junak, Louisiana prisoner # 99298, seeks a

certificate of appealability (COA) to appeal the dismissal of his

habeas corpus application as time-barred by the one-year statute

of limitations in

(d), as amended by the

Antiterrorism and Effective Death Penalty Act of 1996. The

district court determined that Junak’s state application for

postconviction relief, which was filed in 1995 and dismissed, on

July 2, 1998, as untimely pursuant to Louisiana Code of Criminal

Procedure article 930.8, was not “properly filed” as that term is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-30203 2–

used in § 2244(d)(2), and thus, failed to toll the limitations

period.

Subsequent to the district court’s dismissal of Junak’s

§ 2254 application, this court held that a state postconviction

application, dismissed as untimely under article 930.8, was

nevertheless "properly filed" for purposes of the tolling

provision of § 2244(d)(2). Smith v. Ward,

(5th

Cir. 2000). In light of Smith, Junak has established that

jurists of reason would find it debatable whether the district

court was correct in its procedural ruling and whether Junak has

stated a facially valid constitutional claim. See Slack v.

McDaniel, ___ U.S. ___,

(2000); Hall v.

Cain, ___ F.3d ___ (5th Cir. July 12, 2000),

.

A COA is GRANTED, the district court’s judgment of dismissal

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

appropriate proceedings.

COA GRANTED; VACATED AND REMANDED.