IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-31183

Summary Calendar

JERROD D. JOHNSON,

Petitioner-Appellant

v.

TIM KEITH, Warden, Winnfield Correctional Center,

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:12-CV-2134

Before CLEMENT, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Jerrod D. Johnson, Louisiana prisoner # 542543, moves for a certificate of

appealability (COA) so that he may appeal the district court’s dismissal of his 28

U.S.C. § 2254 application as time barred. He was convicted of three counts of

armed robbery with a firearm.

Johnson is entitled to a COA if he makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537

U.S. 322, 336 (2003). That is, Johnson must establish that reasonable jurists

United States Court of Appeals

Fifth Circuit

F I L E D

June 14, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-31183

would find the decision to deny relief debatable or wrong, see Slack v. McDaniel,

529 U.S. 473, 483-84 (2000), or that the issues he presents deserve

encouragement to proceed further, see Miller-El, 537 U.S. at 327. Because the

district court did not reach the merits of Johnson’s claims, we will grant a COA

only if reasonable jurists would debate whether the district court’s time-bar

ruling is correct and whether Johnson has stated a valid claim that he was

denied a constitutional right. See Slack, 529 U.S. at 484; see also Gonzalez v.

Thaler, 132 S. Ct. 641, 648 (2012) (quoting Slack’s two-prong requirement when

the district court denies relief on procedural grounds).

The federal limitations period does not begin to run until both the

conviction and sentence have become final. Scott v. Hubert, 635 F.3d 659, 664-65

(5th Cir. 2011). The Louisiana appellate court affirmed Johnson’s convictions. 

However, it also remanded the case for resentencing. It is unclear from the

record when Johnson was resentenced and whether he appealed the new

sentences. Because it cannot be determined from the record when the time for

seeking direct review of Johnson’s sentences expired, it cannot be determined

when the judgment became final for the purpose of addressing whether his

§ 2254 application is timely. See id. at 666. Accordingly, reasonable jurists

would debate the correctness of the district court’s ruling that the § 2254

application is time barred. See Slack, 529 U.S. at 484. Johnson raised valid

claims of constitutional deprivation in his § 2254 application, including claims

of ineffective assistance of counsel. We express no view on the appropriate

resolution of these claims and observe only that Johnson has made a showing

sufficient to warrant a COA. See Gonzalez, 132 S. Ct. at 648-50; Houser, 395

F.3d at 562. Accordingly a COA is GRANTED as to the district court’s decision

to dismiss the § 2254 application as untimely. 

The district court must resolve the factual question of when Johnson’s

sentence became final, which is not evident from the record before us, and thus

further briefing on this issue before this court would not be helpful. Accordingly,

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No. 12-31183

the judgment is VACATED, and the case is REMANDED to the district court for

further proceedings consistent with this opinion. See Whitehead v. Johnson, 157

F.3d 384, 388 (5th Cir. 1998). Johnson’s motion for leave to file a supplemental

brief is DENIED.

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