United States v. Krout

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 1, 1999
• Docket: 99-40010
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40010 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOUGLAS WILLIAM KROUT,

Defendant-Appellant.

--------------------

Appeal from the United States District Court for the Southern District of Texas USDC Nos. C-97-CV-246 CR-92-CR-161-1

August 20, 1999

Before POLITZ, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Douglas William Krout, federal inmate #61345-079, moves in

this court for a certificate of appealability (COA). See 28

U.S.C. § 2253(c)(1)(B). The district court dismissed Krout’s 28

U.S.C. § 2255 motion as barred by the one-year statute of

limitations, without reaching the merits of his claims.

Accordingly, to obtain a COA, Krout must make a credible showing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40010 -2-

that the district court erred in dismissing the motion on

limitations grounds. See Sonnier v. Johnson, 161 F.3d 941, 943

(5th Cir. 1998); Whitehead v. Johnson, 157 F.3d 384, 386 (5th

Cir. 1998).

Krout’s conviction became final before April 24, 1996.

Accordingly, he had until Thursday, April 24, 1997, to file for

relief under § 2255. See United States v. Flores, 135 F.3d 1000,

1006 (5th Cir. 1998). Because Krout’s § 2255 motion was received

by the district court on Monday, April 28, 1997, within two

business days after the last day for filing, it is entitled to

the presumption that it was delivered timely for mailing via the

prison legal mail system. See United States v. Young, 966 F.2d

164, 165 (5th Cir. 1992).

Krout has shown that the district court erred in dismissing

his § 2255 motion as time-barred. Accordingly, we GRANT a COA on

the limitations issue, VACATE the district court's judgment, and

REMAND the cause for further proceedings.

COA GRANTED; VACATED AND REMANDED.