IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50478
JIMMY ROY DAVIDSON,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-97-CV-687
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December 23, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jimmy Roy Davidson, Texas prisoner # 612588, has applied to
this court for a certificate of appealability (COA). The
district court dismissed Davidson's habeas corpus petition as
time-barred under 28 U.S.C. § 2244(d), without reaching the
merits of his habeas claims.
The district court held that § 2244(d)'s one-year statute of
limitations was not tolled by the pendency of Davidson's state
*
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that this opinion should not be published and is not precedent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. 98-50478
-2-
habeas petition during the period after April 24, 1996. This
ruling was incorrect. See Fields v. Johnson, F.3d (5th
Cir. Oct. 28, 1998), No. 98-10012, 1998 WL 754901. Furthermore,
Davidson's habeas petition was timely filed pursuant to the
"mailbox rule" applicable to prisoners. See Cooper v.
Brookshire, 70 F.3d 377, 378 (5th Cir. 1995).
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.