No. 99-60484 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60484 Summary Calendar

KOURTNEY DANTE BYNUM,

Petitioner-Appellant,

versus

WALTER BOOKER; MIKE MOORE, Attorney General, State of Mississippi,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No.2:99-CV-101-D-B -------------------- February 16, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Kourtney Dante Bynum (Mississippi prisoner # 57301) moves

this court for a certificate of appealability (COA) and for leave

to proceed in forma pauperis (IFP) in his appeal of the district

court’s dismissal of his federal petition for habeas corpus

wherein he challenged his state-court conviction for rape. The

district court sua sponte dismissed Bynum’s petition as time-

barred under the one-year limitations period of

(d). The court reasoned that the period during which

Bynum’s state post-conviction application was pending did not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-60484 -2-

toll the one-year limitation period because the application was

denied as procedurally barred.

To obtain a COA, Bynum must make a substantial showing of

the of a constitutional right. See § 2253(c)(2). In considering

a nonconstitutional question in a COA application, such as the

limitations issues presented here, Bynum must first make a

credible showing of error by the district court. See Sonnier v.

Johnson,

(5th Cir. 1998).

When it rendered its judgment, the district court did not

have the benefit of this court’s decision in Villegas v. Johnson,

(5th Cir. 1999). In Villegas, this court held that

to be “properly filed” for purposes of § 2244(d)(2), a state

habeas petition need only be submitted according to the state’s

procedural filing requirements. Id. at 469-70. A successive

state application or one containing procedurally barred claims is

not per se improperly filed. Id. at 470-71.

A copy of Bynum’s state post-conviction application is not

included in the record; however, Bynum asserts that he filed such

application in early May, 1998. Under Villegas, Bynum has made a

credible showing that the district court erred by dismissing his

petition as time-barred. See Sonnier,

.

Accordingly, Bynum’s motion for a COA is GRANTED and the case is

VACATED and REMANDED to the district court so that the court may

determine conclusively whether the petition was timely filed.

See Sonnier

. Bynum’s motion to proceed IFP is

GRANTED. Bynum’s motion to file a supplemental brief is DENIED

as unnecessary. No. 99-60484 -3-