Davis v. King

Fifth Circuit

Davis v. King

116 F. App'x 530

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 26, 2004

Docket04-60717

StatusUnpublished

This text of 116 F. App'x 530 (Davis v. King) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. King, 116 F. App'x 530 (5th Cir. 2004).

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Opinion

PER CURIAM: *

Kevin Terrence Davis, Mississippi prisoner no. R8777, seeks a certificate of appealability (“COA”) following the district court’s dismissal of his 28 U.S.C. § 2254 federal habeas application as untimely. Davis is serving four life terms of imprisonment for burglary of a dwelling, rape, robbery, and aggravated assault.

Pursuant to 28 U.S.C. § 2244(d)(1)(A), Davis was required to file his habeas application on or before November 17, 2003. The record supports Davis’s contention that he filed a 28 U.S.C. § 2254 petition sometime between November 7, 2003 and November 18, 2003. Because the petition was received in the district court less than two days after the expiration of the limitation period, it is presumed timely filed. See Sonnier v. Johnson, 161 F.3d 941, 945 (5th Cir.1998). Jurists of reason would thus find that the district court was incorrect in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Davis’s request for a COA is granted, the judgment of the district court is vacated, and the case is remanded to the district court for further proceedings consistent with this opinion.

COA GRANTED; JUDGMENT VACATED; CASE 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Kevin Terrence Davis, Mississippi prisoner no. R8777, seeks a certificate of appealability (“COA”) following the district court’s dismissal of his 28 U.S.C. § 2254 federal habeas application as untimely. Davis is serving four life terms of imprisonment for burglary of a dwelling, rape, robbery, and aggravated assault.

Pursuant to 28 U.S.C. § 2244(d)(1)(A), Davis was required to file his habeas application on or before November 17, 2003. The record supports Davis’s contention that he filed a 28 U.S.C. § 2254 petition sometime between November 7, 2003 and November 18, 2003. Because the petition was received in the district court less than two days after the expiration of the limitation period, it is presumed timely filed. See Sonnier v. Johnson, 161 F.3d 941, 945 (5th Cir.1998). Jurists of reason would thus find that the district court was incorrect in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Davis’s request for a COA is granted, the judgment of the district court is vacated, and the case is remanded to the district court for further proceedings consistent with this opinion.

COA GRANTED; JUDGMENT VACATED; CASE 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.

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Bluebook (online)

116 F. App'x 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-king-ca5-2004.

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