                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                               F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                              February 4, 2005
                                   FOR THE FIFTH CIRCUIT
                                                                                          Charles R. Fulbruge III
                                                                                                  Clerk


                                            No. 04-50548
                                          Summary Calendar


TIMOTHEO RIVERA,

                                                                                       Petitioner-
                                                          Appellant,

                                                 versus


DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                                                      Respondent-
                                                          Appellee.

                        -----------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Western District of Texas
                                      USDC No. 5:04-CV-276
                        -----------------------------------------------------------

Before WIENER, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

       IT IS ORDERED that the motion of Timotheo Rivera, Texas prisoner #855199, for a

certificate of appealability (COA) to appeal from the dismissal of his 28 U.S.C. § 2254 habeas corpus

application as time-barred pursuant to 28 U.S.C. § 2244(d) is GRANTED. Rivera’s motion for leave

to proceed in forma pauperis (IFP) is also GRANTED. Rivera’s motion for certification of a question

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
to the Texas Court of Criminal Appeals or, in the alternative, for an order for the respondent to

produce the state-court record or, in the alternative, for supplementation of the record on appeal is

DENIED. Rivera challenges his state-court murder conviction.

         Rivera alleges that he filed his state habeas application in November 2003, and not on January

14, 2004, as he acknowledges he alleged in the district court, and he contends that his state habeas

application was timely to toll the limitations period and render his federal habeas application timely.

A COA may issue only if Rivera makes “a substantial showing of the denial constitutional right.”
                                                                          of a

28 U.S.C. § 2253(c)(2). “The COA determination under § 2253(c)) requires an overview of the

claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537

U.S. 322, 336 (2003). Because his habeas application was dismissed on procedural grounds, Rivera

also must demonstrate “that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

         The record indicates that Rivera’s state habeas application was received and filed in the Texas

Court of Criminal Appeals on January 14, 2004. However, the date that the application was filed in

the court of conviction is unclear from the record. See TEX. CODE CRIM. P. ANN. art. 11.07 §

3(b)(Vernon supp. 2004). We therefore cannot determine whether or not Rivera’s federal habeas

application was time-barred. It is conceivable that Rivera filed his state habeas application in time

to toll the one-year limitations period of 28 U.S.C. § 2244(d)(1) and render his federal habeas corpus

application timely. See 28 U.S.C. § 2244(d)(2). We therefore grant Rivera’s COA motion, vacate

the order dismissing his habeas application, and remand the case for further proceedings in the district

court.



                                                  -2-
    COA GRANTED; IFP GRANTED; MOTION TO CERTIFY QUESTION, ORDER

PRODUCTION OF RECORD, OR SUPPLEMENT RECORD DENIED. VACATED AND

REMANDED.




                             -3-
