### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 c ertificate of appealability (COA) so that he may appeal the district court’s dismissal of his 28 U.S.C. § 2254 applicati o n a s time barred. He was convicted of three c ounts of armed robbery with a firearm. Johnson is entitled to a COA if he m a k e s “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 (200 3 )

. T h a t is, J ohnson must e stablish that r e asonable jurists U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 14, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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would find the decision to deny relief d ebatable or wrong, see S lack v. McDaniel , 529 U.S. 473, 48 3

- 8 4 ( 2 0 0 0), or that the issues he presents deserve encouragement to proceed f urther, see Miller-El , 537 U.S. at 327. Because the district court did not r each the merits of Johnson’s claims, we will grant a COA only if r e aso n ab l e j urists would debate whether the district court’s time-bar ruling is correct and whether Johnson has stated a valid cl aim that he was denied a c o n s t i t u tional right. See Slack , 529 U.S. at 4 84; see also Gonzalez v. Thaler , 132 S. Ct. 641, 648 ( 2 012) (quoting Slack ’s two-prong requirement when the district court denies relief on procedural grounds). The federal limitations per i o d d oes not begin to run until both the conviction and sentence have b ecome final. Scott v . Hubert , 635 F.3d 659, 664-65 (5th Cir. 2011). The Louisiana appellate court affirmed Johnson’s c onvictions. H o wever, it also remanded the case for resentencing. It is unclear fr o m t h e

r ecord when Johnson was resentenced a nd whether he appealed the ne w sentences. Because it c annot be determined from the record when the time for seeking direct r eview of Johnson’s sentences expired, it c a nnot be d e t e r m i ned when the judgmen t b ecame final for the purpose of a ddressing whether his § 2254 application is timely. See i d

. a t 666. Accordingly, reasonable jurists

wou l d d e bate the correctness of the district court’s ruling that the § 2254 application i s t i m e b a rred. See Slack , 529 U.S. at 484. J ohnson raised valid claims of constitutional deprivation in his § 2254 application, including claims of ineffective assistance o f counsel. We express no view on the ap p r o p r iate resolution of these c laims and observe only that Johnson has made a showing

su f f icient t o warrant a COA. See Gonzalez , 132 S. Ct. a t 648-50; Houser , 395 F.3d at 562. Accordingly a C OA is GRANTED as to the district c ourt’s decision to dismiss the § 2254 application as untimely. The district court must resolve the factual q u estion of when Johnson’s sentence became final, which is not evident from the record b efore u s, and thus further b riefing on this issue before this court would not be helpful. Accordingly,
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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.

3 Case: 12-31183 Document: 00512274531 Page: 3 Date Filed: 06/14/2013