                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 19, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-11201
                         Summary Calendar


AUTHER W. CALLICUT,

                                    Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 3:03-CV-1525
                       --------------------

Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Auther Callicut, Texas prisoner # 1028523, appeals the

district court’s dismissal of his 28 U.S.C. § 2254 application

challenging his conviction for murder.   The district court

dismissed Callicut’s application as time-barred.   This court

granted Callicut a certificate of appealability (COA) concerning

the timeliness of the § 2254 application because Callicut had

provided the district court with a document showing that he had

filed his state habeas application no later than January 23,


     *
       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this opinion should not be published and is not precedent except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. 03-11201
                                -2-

2003, rather than on April 15, 2003, as the district court had

determined.

     Callicut argues on appeal that he timely filed his § 2254

application because he filed his state habeas application on

January 10, 2003, rather than on April 15, 2003.

     The respondent argues that this court does not have

jurisdiction to consider Callicut’s appeal because Callicut did

not specifically argue in his COA motion to the district court

that the district court’s finding concerning the date that his

state habeas application was filed was incorrect.   However, this

court has jurisdiction over this appeal because the district

court implicitly considered the issue when it denied Callicut’s

COA motion.   See Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th

Cir. 1998).

     Although Callicut did not challenge the magistrate judge’s

determination of his state habeas filing date in his objections

to the magistrate judge’s findings and recommendation, we review

the district court’s factual findings for clear error and its

legal rulings de novo because the district court conducted an

independent review of the record before denying Callicut’s appeal

as time-barred.   See Henderson v. Quarterman, 460 F.3d 654, 659

(5th Cir. 2006), cert. denied, 127 S. Ct. 1383 (2007); Meister v.

Texas Adjutant General’s Dep’t, 233 F.3d 332, 336 (5th Cir.

2000).
                            No. 03-11201
                                 -3-

       Because Callicut provided the district court with a document

indicating that his state habeas application had been received by

the Dallas County District Clerk on January 23, 2003, the

district court clearly erred in determining that Callicut filed

the application on April 15, 2003.    See Henderson, 460 F.3d at

659.    Using January 23, 2003, as the state habeas filing date,

Callicut’s § 2254 application was timely filed pursuant to 28

U.S.C. § 2244(d).    Accordingly, the district court’s judgment is

VACATED and this case is REMANDED to the district court for

further proceedings.
