                                                       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.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                      USDC No. 2:03-CV-323
                      --------------------

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that this opinion should not be published and is not precedent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.
