IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10425
USDC No. 5:97-CV-414
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC ANTHONY THOMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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July 23, 1998
Before JOLLY, WIENER and BARKSDALE, Circuit Judges.
BY THE COURT:
Eric Anthony Thomas requests the issuance of a certificate
of appealability (COA) from this court to appeal the district
court’s denial of his 28 U.S.C. § 2255 motion as time-barred.
COA is GRANTED with regard to the issue whether Thomas’s § 2255
motion was time-barred. Thomas had until November 15, 1997, to
file for relief under § 2255. For limitations purposes, Thomas’s
motion was filed on the date he forwarded it to prison officials
for mailing to the district court. See Cooper v. Brookshire, 70
F.3d 377, 378 (5th Cir. 1995); Fed. R. App. P. 4(c). The
No. 98-10425
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certificate of service attached to Thomas’s § 2255 motion, which
complies with 28 U.S.C. § 1746, shows that he delivered his
motion to prison authorities for mailing on October 31, 1997,
within the limitations period. See Fed. R. App. P. 4(c) (timely
filing may be shown by a declaration (in compliance with 28
U.S.C. § 1746) setting forth the date of deposit and stating that
first-class postage has been prepaid). Accordingly, COA is
GRANTED, the judgment of the district court is VACATED, and the
case is REMANDED for further proceedings. See Clark v. Williams,
693 F.2d 381, 382 (5th Cir. 1982).