Bryant v. Johnson ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20659
Summary Calendar
TOMMIE LEE BRYANT,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-2933
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January 29, 1999
Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Tommie Lee Bryant, Texas prisoner # 710410, has applied to
this court for a certificate of appealability (COA). The
district court dismissed Bryant’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 Bryant’s state
habeas petition during the period after April 24, 1996. This
*
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that this opinion should not be published and is not precedent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. 98-20659
-2-
ruling was incorrect. See Fields v. Johnson, 159 F.3d 914, 916
(5th Cir. 1998). Bryant had 76 days from April 24, 1997, or
until July 9, 1997, to file his § 2254 petition. Since his
petition was filed only two days late, i.e., on July 11, it is
presumed, under Houston v. Lack, 487 U.S. 266, 276 (1988), to
have been timely delivered for mailing. See United States v.
Young, 966 F.2d 164, 165 (5th Cir. 1992).** Bryant has thus made
a credible showing that the district court erred in finding his
claims barred by the statute of limitations in § 2244(d). See
Davis v. Johnson, 158 F.3d 806, 809 (5th Cir. 1998)(applying COA
standard to nonconstitutional issue of tolling under § 2244(d)).
Accordingly, COA is GRANTED, the district court’s order is
VACATED, and this case is REMANDED for consideration of the
merits of Bryant’s habeas claims.
COA GRANTED; VACATED AND REMANDED.
**
Bryant contends that he placed his § 2254 petition in the
prison mailbox on June 30, 1997, a date that would mean it was
timely filed in accordance with the “mailbox rule” applicable to
prisoner litigants. See Houston v. Lack, 487 U.S. at 276; Cooper
v. Brookshire, 70 F.3d 377, 378 (5th Cir. 1995); Fed. R. App. P.
4(c).