IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60982 Conference Calendar

CARTER EARL FROST,

Petitioner-Appellant,

versus

ROBERT BUBBA ARMSTRONG,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:01-CV-108-S -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

The district court has granted Carter Earl Frost,

Mississippi prisoner #44758, a certificate of appealability (COA)

to appeal the denial of his

application as

successive and time-barred. Appellate review is limited to those

issues. See Lackey v. Johnson,

(5th Cir.

1997). Frost argues that a habeas application that is filed

after a previous petition was dismissed without being adjudicated

on the merits for failure to exhaust state remedies is not a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-60982 -2-

successive application and that he is excused from the

requirement that his application not be successive or time-barred

because he was hindered from complying with the state statutory

rules.

Frost’s application challenged his prior guilty-plea

conviction, which was used as a basis of enhancing his current

sentence for his 1991 conviction. While Frost is no longer “in

custody” for the prior conviction, the jurisdictional requirement

of being “in custody” is satisfied by considering the petition as

a challenge to the current conviction. See Dilworth v. Johnson,

(5th Cir. 2000). However, if Frost’s

application is so construed, it is successive. His prior federal

habeas application was not dismissed for failure to exhaust state

remedies, but for procedural bar. Frost did not receive

authorization from this court, and the district court was correct

that it did not have jurisdiction to hear the application because

Frost could have raised his challenge to the prior conviction at

the time his initial petition was filed. See

(b)(3)(A); United States v. Orozco-Ramirez,

(5th Cir. 2000).

The district court’s alternative holding that Frost’s

application is time-barred is also correct. Frost fails to

describe how the alleged state-created impediment actually

impeded him from filing the instant

petition at

an earlier date or when this alleged state-created impediment was No. 01-60982 -3-

removed. Thus, the court considers the one-year time period as

beginning on the effective date of the Antiterrorism and

Effective Death Penalty Act. See

(d); Flanagan

v. Johnson,

, 199-200 & n.2 (5th Cir. 1998).

Neither of Frost’s state-court habeas applications were

pending during that one-year period and thus did not toll that

period. See

(d)(2). Frost’s first

application also did not toll the limitation period. See

Grooms v. Johnson,

, 489 (5th Cir. 1999). Because

Frost’s instant application was signed well outside the one-year

period, his habeas application is time-barred.

Frost’s application is successive and time-barred. The

district court’s judgment is AFFIRMED. Frost’s motion to have

this court declare respondent’s brief moot is DENIED.