No. 99-60484
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60484
Summary Calendar
KOURTNEY DANTE BYNUM,
Petitioner-Appellant,
versus
WALTER BOOKER; MIKE MOORE, Attorney
General, State of Mississippi,
Respondents-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No.2:99-CV-101-D-B
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February 16, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Kourtney Dante Bynum (Mississippi prisoner # 57301) moves
this court for a certificate of appealability (COA) and for leave
to proceed in forma pauperis (IFP) in his appeal of the district
court’s dismissal of his federal petition for habeas corpus
wherein he challenged his state-court conviction for rape. The
district court sua sponte dismissed Bynum’s petition as time-
barred under the one-year limitations period of 28 U.S.C.
§ 2244(d). The court reasoned that the period during which
Bynum’s state post-conviction application was pending did not
*
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that this opinion should not be published and is not precedent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. 99-60484
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toll the one-year limitation period because the application was
denied as procedurally barred.
To obtain a COA, Bynum must make a substantial showing of
the of a constitutional right. See § 2253(c)(2). In considering
a nonconstitutional question in a COA application, such as the
limitations issues presented here, Bynum must first make a
credible showing of error by the district court. See Sonnier v.
Johnson, 161 F.3d 941, 943-44 (5th Cir. 1998).
When it rendered its judgment, the district court did not
have the benefit of this court’s decision in Villegas v. Johnson,
184 F.3d 467 (5th Cir. 1999). In Villegas, this court held that
to be “properly filed” for purposes of § 2244(d)(2), a state
habeas petition need only be submitted according to the state’s
procedural filing requirements. Id. at 469-70. A successive
state application or one containing procedurally barred claims is
not per se improperly filed. Id. at 470-71.
A copy of Bynum’s state post-conviction application is not
included in the record; however, Bynum asserts that he filed such
application in early May, 1998. Under Villegas, Bynum has made a
credible showing that the district court erred by dismissing his
petition as time-barred. See Sonnier, 161 F.3d at 943-44.
Accordingly, Bynum’s motion for a COA is GRANTED and the case is
VACATED and REMANDED to the district court so that the court may
determine conclusively whether the petition was timely filed.
See Sonnier 161 F.3d at 945. Bynum’s motion to proceed IFP is
GRANTED. Bynum’s motion to file a supplemental brief is DENIED
as unnecessary.
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