Cressionnie v. Kelly

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 19, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60259
Summary Calendar
CLINTON L. CRESSIONNIE,
Petitioner-Appellant,
versus
LAWRENCE KELLY,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:03-CV-422-RGU
--------------------
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Clinton L. Cressionnie, Mississippi prisoner # 22155,
appeals the district court’s dismissal of his 28 U.S.C. § 2254
application challenging his convictions for escape, grand
larceny, and petit larceny as time-barred. This court has
granted Cressionnie a certificate of appealability on the limited
issue of whether his state habeas corpus application filed in the
state circuit court on November 19, 2001, tolled the statute of
limitations and made his 28 U.S.C. § 2254 application timely.

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No. 04-60259
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See Cressionnie v. Cabana, No. 04-60259 (5th Cir. Oct. 26, 2004)
(unpublished).
Cressionnie argues that his state habeas application was
properly filed under 28 U.S.C. § 2244(d)(2) and tolled the
statute of limitations during its pendency. If the application
was not properly filed, he contends that the statute of
limitations was equitably tolled because he was actively misled
into believing that the application was properly filed. The
respondent asserts that Cressionnie’s state habeas application
challenged his extradition from Florida to Mississippi to face
the charges for which he was convicted, that Cressionnie did not
have standing to bring that challenge, and that the state circuit
court, therefore, did not have jurisdiction to consider it,
making the application not properly filed under 28 U.S.C.
§ 2244(d)(2).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
established “an explicit limitation period for state prisoners
filing federal habeas petitions.” Fisher v. Johnson, 174 F.3d
710, 711 (5th Cir. 1999). Under 28 U.S.C. § 2244(d)(1), a
prisoner has one year from the latest of various events,
including “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review,” to file a federal habeas petition.
28 U.S.C. § 2244(d)(1)(A). The period during which a “properly
filed application for state post-conviction or other collateral

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No. 04-60259
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review” regarding the same conviction is pending is not counted
toward the one-year period. 28 U.S.C. § 2244(d)(2); Fields v.
Johnson, 159 F.3d 914, 916 (5th Cir. 1998). This court reviews a
district court’s determination that a 28 U.S.C. § 2254
application was untimely de novo. See Melancon v. Kaylo, 259
F.3d 401, 404 (5th Cir. 2001).
The respondent’s argument misconstrues the relevant
precedent. Whether the state circuit court had jurisdiction to
consider the claim raised by Cressionnie in his state habeas
application is irrelevant to the issue of whether the application
was properly filed; the relevant question was whether the state
circuit court had jurisdiction to consider the application
itself, regardless of whether it lacked jurisdiction to consider
the claims contained therein. See Artuz v. Bennett, 531 U.S. 4,
8-11 (2000); Larry v. Dretke, 361 F.3d 890, 893 (5th Cir. 2004).
The state circuit court had jurisdiction to consider
Cressionnie’s state habeas application. See MISS. CODE ANN. § 11-
43-7; Bubac v. Boston, 600 So. 2d 951, 953 (Miss. 1992).
Accordingly, Cressionnie’s state habeas application was properly
filed and tolled the statute of limitations pursuant to 28 U.S.C.
§ 2244(d)(2), making his 28 U.S.C. § 2254 application timely.
See Artuz, 531 U.S. at 8-11; Larry, 361 F.3d at 893.
Therefore, the judgment of the district court is VACATED and
the case is REMANDED to the district court for further
proceedings.

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No. 04-60259
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VACATED AND REMANDED.

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