IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-30350 _____________________

JOHN A. RICHARD,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana, Lafayette USDC No. 99-CV-1795 _________________________________________________________________ March 7, 2001

Before FARRIS,* JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:**

John A. Richard filed a habeas petition in the district court,

challenging the constitutionality of his Louisiana state court

conviction for aggravated rape. The district court dismissed

Richard's petition as time-barred under the Antiterrorism and

* Circuit Judge of the Ninth Circuit, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Effective Death Penalty Act ("AEDPA"). Richard appeals, and we

vacate the judgment and remand for further proceedings.

I

In February 1990, John A. Richard was convicted of three

counts each of aggravated rape and oral sexual battery. He was

sentenced to life imprisonment. After a Louisiana court of appeals

affirmed his convictions, Richard filed a state habeas petition,

which the trial court denied in November 1993. The Louisiana

Supreme Court granted Richard’s application for a supervisory writ

and remanded the case for an evidentiary hearing on his ineffective

assistance of counsel claim. After the trial court set aside

Richard’s convictions on the sexual battery counts, the state

appellate court reinstated the convictions. The Louisiana Supreme

Court denied Richard’s application for a supervisory writ on

September 18, 1998. Richard filed a second state habeas petition

in March 1999, which the state trial court denied two months later.

He then applied for a writ of review from the state appellate court

in June 1999, but the appellate court denied the petition three

months later.

Richard filed this federal habeas petition on September 29,

1999. He alleged that (1) the jury instruction regarding

reasonable doubt was unconstitutional, (2) he received ineffective

assistance of counsel, and (3) the State withheld exculpatory

evidence in violation of Brady.

2 The magistrate judge recommended that the federal habeas

petition be denied as time-barred under

(d), which

imposes a one-year limitation period for federal habeas relief.

The magistrate judge noted that the Louisiana Supreme Court denied

his application for a supervisory writ on September 18, 1998, and

that Richard did not file his federal habeas petition until

September 29, 1999. The magistrate judge was not aware that

Richard had filed a second state habeas petition in March 1999.

Richard filed objections to the magistrate judge’s report, but

he did not argue that the pendency of his second state habeas

petition tolled the statute of limitations. Instead, Richard

argued that his petition was timely filed because the Louisiana

Supreme Court’s September 1998 order denying his petition for a

supervisory writ did not become final until the 14-day period for

filing a petition for rehearing had expired. Richard thus

concluded that he had until October 2, 1999, to file his federal

habeas petition.

The district court adopted the magistrate judge’s

recommendations and dismissed Richard’s habeas petition as time-

barred. The court conducted a de novo review of the record, but

there was nothing in the record or pleadings about Richard’s second

state habeas petition.

Richard then filed a request for a certificate of

appealability (“COA”). In his COA application, Richard finally

disclosed that he had filed a second state habeas petition in March

3 1999. He argued that the second petition should have been

considered “pending” for approximately four and a half months when

it was being considered by the Louisiana courts. Under this

scenario, his petition would have been timely filed. See Villegas

v. Johnson,

(5th Cir. 1999). On the preprinted

form, the district court checked the box indicating that the COA

was being denied “because the applicant has failed to demonstrate

a substantial showing of the denial of a constitutional right.”

Based on this pro forma denial of the COA, it is not clear whether

the district court actually considered and rejected Richard’s new

argument. Nevertheless, Richard’s argument regarding the pendency

of his second state petition was before the district court in the

COA application.

Richard then requested a COA from this court to appeal the

district court’s dismissal of his petition as time-barred.1 We

noted that Richard had stated a facially valid constitutional claim

and that it is “debatable whether the district court was correct in

its procedural ruling given the information presented in Richard’s

COA application in the district court as to his second state habeas

petition. . . . As this court has not yet addressed whether the

1 “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, 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 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).

4 district court should consider such information raised for the

first time in the petitioner’s COA application in the district

court, a COA is GRANTED on that issue.” We review de novo the

district court's denial of Richard's habeas application on

procedural grounds. Johnson v. Cain,

(5th Cir.

2000).

II

A

The first question to address is whether the district court,

when ruling on a pro se petitioner’s COA application, should have

considered facts that (1) were presented for the first time in the

COA application, (2) pertained only to procedural questions, and

(3) called into doubt the correctness of the district court’s

decision to dismiss Richard’s habeas petition as time-barred.

We are concerned that Richard waited until the filing of his

application for a COA to bring these highly relevant facts to the

district court’s attention. However, the State does not contend

that Richard waived his right to present new arguments about the

timeliness of his federal petition. Moreover, there is no

authority indicating that such procedural arguments are waived by

the petitioner. In fact, at least one district court has issued a

COA in a similar situation. In a recent Second Circuit case, the

“district court dismissed the petition sua sponte as time-barred

but granted appellant's motion for a certificate of appealability

(‘COA’). When the district court dismissed the petition, . . .

5 appellant’s representations concerning [his later state habeas

petition] were not before it. These came to light only when

appellant moved the district court for a COA.” Bennett v. Artuz,

(2d Cir. 1999), aff’d,

(2000).

Because the state has virtually conceded that the district

court could have considered this newly presented fact, we conclude

that Richard’s evidence that his second state habeas petition was

pending for several months in 1999 was properly before the district

court. Consequently, the district court could have considered this

new evidence, and we may consider it on appeal. Cf. Glover v.

Hargett,

(5th Cir. 1995), cert. denied,

(1996)(“[A] contention not raised by a habeas petitioner in the

district court cannot be considered for the first time on appeal

from that court's denial of habeas relief.”).

B

The second question for us, which must be considered in the

light of the additional information presented in the COA

application, is whether the district court erred in dismissing

Richard’s habeas petition as time-barred. We conclude that the

pendency of Richard’s second state habeas petition tolled the one-

year AEDPA statute of limitations.

As noted above, the Louisiana Supreme Court denied Richard’s

request for a supervisory writ for his criminal conviction on

September 18, 1998. Richard thus had one year from that date to

6 file a federal habeas petition. See

(d)(1).

Section 2244(d)(2) provides, however:

[T]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward [the one-year] period of limitation.

(d)(2).

Richard’s second state habeas petition was filed on March 19,

1999, and denied by the trial court on May 6. His petition for a

writ of review from a state appellate court was filed on June 14

and denied on September 15. These state petitions were, in the

aggregate, pending for a period of over four months, during which

time the one-year limitation period for those claims was tolled

under section 2244(d)(2).

The State does not argue that Richard’s 1999 state petition

was not “properly filed.” Cf. Artuz v. Bennett,

(2000); Villegas v. Johnson,

(5th Cir. 1997).

Instead, the State argues that the pendency of the 1999 habeas

before the state courts did not toll the one-year limitations

period that began in September 1998 because the denial of the 1999

state habeas petition “was not a pertinent judgment or claim”

within the meaning of section 2244(d)(2).2 We believe the State

2 The State argues that Richard “never intended to make the second post-conviction relief application issues a part of his habeas corpus application. And as a result, it is apparent that the denial of the second post-conviction [petition] was not a pertinent judgment or claim as required under

(d)(2). . . . [S]ince the habeas application does not relate

7 has misread the statutory language. The word “judgment” in section

2244(d)(2) refers to the “judgment of a State court” with respect

to which the petition seeks review, that is, the judgment that

resulted in the petitioner’s being placed in custody. See

(d)(1). That judgment became final for the purposes

of section 2244(d)(1)(A) in September 1998. It is immaterial

whether Richard’s second state habeas petition raised issues that

were not raised in his federal habeas petition. What matters is

that Richard, in the second state habeas petition, sought “State

post-conviction or other collateral review with respect” to the

same judgment (i.e., his conviction for aggravated rape and sexual

battery) that he is challenging through the federal habeas petition

that is now before us.

We therefore conclude that the one-year limitation period was

tolled during the pendency of Richard’s second state habeas

petition attacking the same judgment of conviction involved in this

appeal. The federal habeas petition filed in September 1999 was

timely, and the district court erred in dismissing it as time-

barred.

III

For the aforementioned reasons, the district court’s order

denying Richard’s petition for a writ of habeas corpus is VACATED.

to the second post-conviction application, its pendency does not toll the statute of limitations under AEDPA.”

8 The case is REMANDED for consideration of the merits of the

petition.

VACATED and REMANDED.

9