IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30462 Summary Calendar

MOSE A. REED, JR.,

Petitioner-Appellant,

versus

HARRY CONNICK, District Attorney, Parish of Orleans; TERRY TERRELL, Warden; RICHARD IEYOUB, Attorney General, State of Louisiana,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 97-CV-3160-F -------------------- August 9, 2000

Before JOLLY, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

Mose A. Reed, Louisiana prisoner #82880, appeals from the

dismissal of his

petition as untimely. He

contends that his third application for state post-conviction

relief served to toll the one-year limitations period imposed by

the Antiterrorism and Effective Death Penalty Act (AEDPA).

State prisoners attacking convictions or sentences that

became final prior to the AEDPA’s April 24, 1996, effective date

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-30462 -2-

have a one-year grace period, commencing on that date, within

which to file for federal habeas relief. See Flanagan v.

Johnson,

, 200 n.2 (5th Cir. 1998). Reed’s

conviction became final in 1989. See R. 140. He was therefore

required to file his § 2254 petition no later than April 24,

1997. See Flanagan,

& n.2.

Pursuant to § 2244(d)(2), however, the time during which a

“properly filed” application for state habeas relief with respect

to the pertinent judgment or claim is pending does not count

toward the AEDPA’s one-year limitations period. See

§ 2244(d)(2); Fields v. Johnson,

(5th Cir.

1998). Under our recent decision in Smith v. Ward, which the

district court did not have the benefit of, Reed’s third

application for state post-conviction relief was “properly filed”

for the purposes of § 2244(d)(2) even though it was dismissed as

untimely under La. Code Crim. Proc. art. 930.8. See

(5th Cir. 2000). Consequently, this third

application for state post-conviction relief tolled the

limitations period with 163 days remaining and extended the

deadline for filing Reed’s § 2254 petition until May 25, 1998.

Reed’s petition, filed on September 14, 1997, is therefore

timely. Accordingly, we VACATE the district court’s dismissal of

his petition and REMAND.

VACATED AND REMANDED.