United States v. Michael Kincaid

Fifth Circuit

United States v. Michael Kincaid

644 F. App'x 332

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 30, 2016

Docket15-10940

StatusUnpublished

This text of 644 F. App'x 332 (United States v. Michael Kincaid) 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.

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United States v. Michael Kincaid, 644 F. App'x 332 (5th Cir. 2016).

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PER CURIAM: *

Michael Kincaid, federal prisoner # 45049-177, moves for a certificate of ap-pealability (COA) to challenge the denial of his 28 U.S.C. § 2255 motion as. time barred. In his § 2255 motion, Kincaid challenged his conviction for conspiracy to commit healthcare fraud and sentence of 60 months of imprisonment on the grounds of ineffective assistance of counsel.

Reasonable jurists would find that the district court erred in sua sponte dismiss *333 ing Kincaid’s § 2255 motion as time barred without giving the parties notice and an opportunity to address the timeliness of his motion. See Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Additionally, “the district court pleadings, the record, and the COA application demonstrate that reasonable jurists could debate whether the petitioner has made a valid claim of a constitutional deprivation.” Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.2004).

Accordingly, Kincaid’s motion for a COA is GRANTED; his motion for leave to proceed in forma pauperis is GRANTED; the district court’s judgment dismissing his § 2255 motion as untimely is VACATED; and the matter is REMANDED for further proceedings consistent with Day. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.1998).

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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: *

Michael Kincaid, federal prisoner # 45049-177, moves for a certificate of ap-pealability (COA) to challenge the denial of his 28 U.S.C. § 2255 motion as. time barred. In his § 2255 motion, Kincaid challenged his conviction for conspiracy to commit healthcare fraud and sentence of 60 months of imprisonment on the grounds of ineffective assistance of counsel.

Reasonable jurists would find that the district court erred in sua sponte dismiss *333 ing Kincaid’s § 2255 motion as time barred without giving the parties notice and an opportunity to address the timeliness of his motion. See Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Additionally, “the district court pleadings, the record, and the COA application demonstrate that reasonable jurists could debate whether the petitioner has made a valid claim of a constitutional deprivation.” Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.2004).

Accordingly, Kincaid’s motion for a COA is GRANTED; his motion for leave to proceed in forma pauperis is GRANTED; the district court’s judgment dismissing his § 2255 motion as untimely is VACATED; and the matter is REMANDED for further proceedings consistent with Day. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.1998).

*

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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644 F. App'x 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-kincaid-ca5-2016.

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