                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 26, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-60717
                           Summary Calendar



KEVIN TERRENCE DAVIS,

                                     Petitioner-Appellant,

versus

RONALD KING,

                                     Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                    USDC No. 1:03-CV-891-RRo
                      --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges

PER CURIAM:*

     Kevin Terrence Davis, Mississippi prisoner no. R8777, seeks

a certificate of appealability (“COA”) following the district

court’s dismissal of his 28 U.S.C. § 2254 federal habeas

application as untimely.    Davis is serving four life terms of

imprisonment for burglary of a dwelling, rape, robbery, and

aggravated assault.

     Pursuant to 28 U.S.C. § 2244(d)(1)(A), Davis was required to

file his habeas application on or before November 17, 2003.        The


     *
       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this opinion should not be published and is not precedent except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. 04-60717
                               -2-

record supports Davis’s contention that he filed a 28 U.S.C.

§ 2254 petition sometime between November 7, 2003 and November

18, 2003.   Because the petition was received in the district

court less than two days after the expiration of the limitation

period, it is presumed timely filed.   See Sonnier v. Johnson, 161

F.3d 941, 945 (5th Cir. 1998).   Jurists of reason would thus find

that the district court was incorrect in its procedural ruling.

See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

     Davis’s request for a COA is granted, the judgment of the

district court is vacated, and the case is remanded to the

district court for further proceedings consistent with this

opinion.

     COA GRANTED; JUDGMENT VACATED; CASE REMANDED.
