     Case: 15-10940      Document: 00513445490         Page: 1    Date Filed: 03/30/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-10940
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                 March 30, 2016
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee             Clerk

v.

MICHAEL KINCAID,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CV-2905
                             USDC No. 3:12-CR-261-2


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Michael Kincaid, federal prisoner # 45049-177, moves for a certificate of
appealability (COA) to challenge the denial of his 28 U.S.C. § 2255 motion as
time barred.     In his § 2255 motion, Kincaid challenged his conviction for
conspiracy to commit healthcare fraud and sentence of 60 months of
imprisonment on the grounds of ineffective assistance of counsel.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-10940    Document: 00513445490    Page: 2   Date Filed: 03/30/2016


                                No. 15-10940

      Reasonable jurists would find that the district court erred in sua sponte
dismissing Kincaid’s § 2255 motion as time barred without giving the parties
notice and an opportunity to address the timeliness of his motion. See Day v.
McDonough, 547 U.S. 198, 209-10 (2006); Slack v. McDaniel, 529 U.S. 473, 484
(2000). Additionally, “the district court pleadings, the record, and the COA
application demonstrate that reasonable jurists could debate whether the
petitioner has made a valid claim of a constitutional deprivation.” Houser v.
Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
      Accordingly, Kincaid’s motion for a COA is GRANTED; his motion for
leave to proceed in forma pauperis is GRANTED; the district court’s judgment
dismissing his § 2255 motion as untimely is VACATED; and the matter is
REMANDED for further proceedings consistent with Day. See Whitehead v.
Johnson, 157 F.3d 384, 388 (5th Cir. 1998).




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