Clinton L. CRESSIONNIE, Petitioner-Appellant, v. Lawrence KELLY, Respondent-Appellee, 174 F. App'x 246

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 Cression-nie 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. See Cressionnie v. Cabana, No. 04-60259 (5th Cir. Oct.26, 2004) (unpublished).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 Cression-nie 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 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, 121 S.Ct. 361, 148 L.Ed.2d 213 (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 Ar-tuz, 531 U.S. at 8-11, 121 S.Ct. 361; 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. VACATED AND REMANDED. 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.