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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40687

Summary Calendar

MICHAEL WAYNE CRAIG,

Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:07-CV-167

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Michael Wayne Craig, Texas prisoner # 1085917, was convicted in 2002 of

driving while intoxicated (third or more offense) and sentenced to life

imprisonment. After his conviction was affirmed on direct appeal, Craig

obtained leave to file an out-of-time petition for discretionary review (PDR). The

PDR was refused in April 2007, and Craig did not seek certiorari from the

United States Court of Appeals

Fifth Circuit

F I L E D

May 17, 2010

Lyle W. Cayce

Clerk

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No. 08-40687

2

Supreme Court. He filed the instant 28 U.S.C. § 2254 petition on October 31, 2007.

The district court dismissed the petition as barred by the applicable oneyear statute of limitations, holding, in light of Salinas v. Dretke, 354 F.3d 425

(5th Cir. 2004), that the out-of-time PDR did not reinstate the direct review

process for purposes of resetting the federal limitation period. Craig now seeks

a certificate of appealability (COA) to appeal that determination. A COA will not

issue unless Craig makes a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(1)(A), (2). When, as here, the district court’s denial

of federal habeas relief is based solely on procedural grounds, “a COA should

issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a

constitutional right and 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). 

After the district court dismissed Craig’s petition, the Supreme Court held

that when “a state court grants a criminal defendant the right to file an

out-of-time direct appeal during state collateral review, but before the defendant

has first sought federal habeas relief, his judgment is not yet final for purposes

of” the one-year limitation period. Jimenez v. Quarterman, _ U.S. _ , 129 S. Ct.

681, 686 (2009) (internal quotation marks omitted). Although the district court

did not have the benefit of the Supreme Court’s opinion in Jimenez, its reliance

on Salinas to conclude that Craig’s petition was untimely was, in light of

Jimenez, erroneous. See Womack v. Thaler, 591 F.3d 757, 757-58 (5th Cir. 2009).

Thus, Craig has shown that reasonable jurists would debate the correctness of

the district court’s procedural ruling. On the record before us, we conclude

further that Craig has satisfied the COA standard with respect to averring a

facially valid constitutional claim. See Houser v. Dretke, 395 F.3d 560, 562 (5th

Cir. 2004). 

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For the foregoing reasons, we GRANT Craig a COA on the question

whether his petition was barred by the statute of limitations in light of Jimenez,

we VACATE the district court’s judgment, and we REMAND to the district court

to address the merits of the habeas claims in the first instance. See Womack,

591 F.3d at 758; Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). We

express no opinion on the ultimate disposition of Craig’s § 2254 petition.

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