Davis v. King

* 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this opinion should not be published and is not precedent except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
November 26, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60717
Summary Calendar
KEVIN TERRENCE DAVIS,
Petitioner-Appellant,
versus
RONALD KING,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:03-CV-891-RRo
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges
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

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No. 04-60717
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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 (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.

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