Callicut v. Quarterman

* 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this opinion should not be published and is not precedent except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
July 19, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-11201
Summary Calendar
AUTHER W. CALLICUT,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-1525
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Auther Callicut, Texas prisoner # 1028523, appeals the
district court’s dismissal of his 28 U.S.C. § 2254 application
challenging his conviction for murder. The district court
dismissed Callicut’s application as time-barred. This court
granted Callicut a certificate of appealability (COA) concerning
the timeliness of the § 2254 application because Callicut had
provided the district court with a document showing that he had
filed his state habeas application no later than January 23,

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No. 03-11201
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2003, rather than on April 15, 2003, as the district court had
determined.
Callicut argues on appeal that he timely filed his § 2254
application because he filed his state habeas application on
January 10, 2003, rather than on April 15, 2003.
The respondent argues that this court does not have
jurisdiction to consider Callicut’s appeal because Callicut did
not specifically argue in his COA motion to the district court
that the district court’s finding concerning the date that his
state habeas application was filed was incorrect. However, this
court has jurisdiction over this appeal because the district
court implicitly considered the issue when it denied Callicut’s
COA motion. See Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th
Cir. 1998).
Although Callicut did not challenge the magistrate judge’s
determination of his state habeas filing date in his objections
to the magistrate judge’s findings and recommendation, we review
the district court’s factual findings for clear error and its
legal rulings de novo because the district court conducted an
independent review of the record before denying Callicut’s appeal
as time-barred. See Henderson v. Quarterman, 460 F.3d 654, 659
(5th Cir. 2006), cert. denied, 127 S. Ct. 1383 (2007); Meister v.
Texas Adjutant General’s Dep’t, 233 F.3d 332, 336 (5th Cir.
2000).

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No. 03-11201
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Because Callicut provided the district court with a document
indicating that his state habeas application had been received by
the Dallas County District Clerk on January 23, 2003, the
district court clearly erred in determining that Callicut filed
the application on April 15, 2003. See Henderson, 460 F.3d at
659. Using January 23, 2003, as the state habeas filing date,
Callicut’s § 2254 application was timely filed pursuant to 28
U.S.C. § 2244(d). Accordingly, the district court’s judgment is
VACATED and this case is REMANDED to the district court for
further proceedings.

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