IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20335 Summary Calendar

EMMANUEL MORENO,

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-1189 -------------------- November 7, 2000

Before JOLLY, SMITH, and DUHÉ, Circuit Judges.

PER CURIAM:1

Emmanuel Moreno was convicted of murder in Texas state court

in 1992. He subsequently filed a petition seeking habeas corpus

relief in federal court, which was denied because of untimeliness.

This court granted a certificate of appealability (“COA”) on the

issue whether the limitations period under the Antiterrorism and

Effective Death Penalty Act (AEDPA) is tolled until the date the

state court denies the prisoner’s habeas petition, or whether the

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. limitations period is tolled until the prisoner receives actual

notice of the denial.

Once a prisoner’s state petition is denied, it is no longer

“pending” for purposes of tolling the AEDPA limitations period.

See Phillips v. Donnelly,

(5th Cir. 2000).

However, where a prisoner’s time to file a federal habeas petition

runs out before he receives actual notice that his state petition

was denied, the doctrine of equitable tolling may apply. See

Equitable tolling is “a discretionary doctrine that turns on the

facts and circumstances of a particular case . . . .” Fisher v.

Johnson,

(5th Cir. 1999). Whether the particular

facts of Moreno’s case warrant the application of the equitable

tolling doctrine is a question of fact to be decided by the

district court in its discretion. See

Accordingly, the dismissal as untimely by the district court

is VACATED and this case is REMANDED to the district court to

determine whether the doctrine of equitable tolling should be

applied to the facts of this case.

2