IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-20218 Summary Calendar

RAYMOND SPICER,

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 Southern District of Texas USDC No. H-98-CV-695 -------------------- October 5, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Raymond Spicer, Texas prisoner #696206, seeks a certificate of

appealability (“COA”) to appeal the dismissal of his habeas corpus

application as barred by the one-year statute of limitations in

(d). Because the district court’s denial of federal

habeas relief is based upon procedural grounds without analysis of

the underlying constitutional claims, “a COA should issue when the

prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel,

(2000).

Spicer’s state court conviction became final well before the

effective date of the AEDPA; thus, Spicer had until April 24, 1997,

to file his § 2254 petition. See Flanagan v. Johnson,

(5th Cir. 1998). Spicer did not file his § 2254 petition

until March 10, 1998. Accordingly, unless the one-year grace

period was tolled, Spicer’s petition is untimely.

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

§ 2254 petition, this court held that a purported four-month delay

in receiving notice of the denial of a state habeas application

could constitute a rare and exceptional circumstance warranting the

equitable tolling of the one-year limitation period. Phillips v.

Donnelly,

(5th Cir.), rehearing granted and

opinion modified,

(5th Cir. 2000). Spicer contends

that he did not receive notice of the denial of his state habeas

application until sometime in early 1998. Spicer’s state habeas

application was denied on April 23, 1997. If it is established

that Spicer did not receive notice of the denial of his state

habeas application until sometime in early 1998, his § 2254

application filed on March 10, 1998, may be timely.

Spicer has shown that reasonable jurists would find that the

district court erred in dismissing his § 2254 petition as barred by

the one-year statute of limitations in § 2244(d). Slack,

. His petition also presents at least one facially valid

constitutional claim. Hall v. Cain,

(5th Cir. 2000). A COA is GRANTED, the district court’s judgment of

dismissal is VACATED, and the case is REMANDED to the district

court for a determination as to when Spicer first received notice

of the denial of his state habeas application. Spicer has the

burden of establishing when he first received notice. Phillips,

.

Moreover, the district court’s determination that Spicer’s

failure to notify the Texas Court of Criminal Appeals of his change

of address caused the limitations period to expire is clearly

erroneous. A factual finding is clearly erroneous “when although

there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed.” United States v. United States Gypsum

Co.,

(1948); Fed. R. Civ. P. 52(a). The state

record contains nothing showing that Spicer was mailed any

notification prior to his inquiry in January 1998. He did not

change his prior address from April to December 1997, and he

notified the court of the change in January 1998. Additionally,

there was no need for Spicer to inquire periodically of the habeas

application status; the form letter of the Clerk of the Court of

Criminal Appeals has a check-off statement indicating that the

petitioner would be notified when a decision was reached.

COA GRANTED; VACATED and REMANDED.