United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-60213
Summary Calendar
DAVID LEE HAYES,
Petitioner-Appellant,
versus
DONALD A. CABANA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:03-CV-323
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
David Lee Hayes, Mississippi prisoner # 40873, seeks a
certificate of appealability (COA) to appeal the district court’s
dismissal as untimely of his 28 U.S.C. § 2254 petition
challenging his 2000 conviction for felony escape. In order to
obtain a COA, Hayes must make a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2).
Hayes asserts that the district court erred in dismissing
his federal petition as untimely. It cannot be ascertained from
*
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that this opinion should not be published and is not precedent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. 04-60213
-2-
the current record whether the Mississippi Supreme Court
considered Hayes’s 2002 postconviction application as a challenge
to a statutory rape conviction, as was alleged in the facts of
the application, or as a challenge to the escape conviction, as
was alleged on the cover page of the application. The
Mississippi Supreme Court did dismiss as successive Hayes’s 2003
application challenging his escape conviction. If the earlier
application was in fact a challenge to the escape conviction,
Hayes would be entitled to tolling for the time that application
was pending, which would continue until the present date if the
Mississippi Supreme Court never ruled on it. Consequently, COA
is GRANTED on the following issues: considering the state court’s
ruling on Hayes’s 2003 application, whether Hayes’s state
postconviction application filed in 2002 was interpreted by the
state courts as a challenge to his escape conviction; whether
Hayes was entitled to tolling for any time that such an
application was pending; and whether Hayes’s federal petition has
been rendered timely by any such tolling. Because the record is
insufficient to establish the propriety of the district court’s
ruling, the case is REMANDED to the district court so that that
court may obtain copies of any necessary postconviction documents
in either the escape or the statutory rape case.
Hayes’s motion for leave to proceed in forma pauperis (IFP)
on appeal is also GRANTED. Hayes has moved for appointment of
counsel on appeal; this motion is DENIED.
No. 04-60213
-3-
COA GRANTED; JUDGMENT VACATED; CASE REMANDED; IFP GRANTED;
APPOINTMENT OF COUNSEL DENIED.