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. 08-10797

Summary Calendar

RANDALL L BANKS

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 Northern District of Texas

USDC No. 4:08-CV-45

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Randall L. Banks, Texas prisoner # 1084188, seeks a certificate of

appealability (COA) to appeal the dismissal with prejudice of his 28 U.S.C.

§ 2254 petition as time barred. The district court’s timeliness determination was

grounded in its conclusion that Banks’s out-of-time petition for discretionary

review (PDR) did not toll the period for filing his § 2254 petition or otherwise

affect the limitations period found in 28 U.S.C. § 2244(d).

United States Court of Appeals

Fifth Circuit

F I L E D

June 7, 2010

Lyle W. Cayce

Clerk

Case: 08-10797 Document: 00511133945 Page: 1 Date Filed: 06/07/2010
No. 08-10797

2

A COA may be issued only if the petitioner “has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). When the

district court’s denial of § 2254 relief is based on procedural grounds without

analysis of the underlying constitutional claims, “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 issued its judgment in this case, the Supreme Court

held that “where 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 § 2244(d)(1)(A).” Jimenez v. Quarterman, 129 S. Ct. 681 (2009). In Womack

v. Thaler, 591 F.3d 757 (5th Cir. 2009), this court extended the rationale of

Jimenez to a case where the state court granted a criminal defendant the right

to file an out-of-time PDR. Consequently, jurists of reason could debate the

propriety of the district court’s procedural ruling. See Slack, 529 U.S. at 484.

Jurists of reason could likewise debate whether Banks’s § 2254 petition “states

a valid claim of the denial of a constitutional right.” Id.

We therefore grant a COA, vacate the district court’s dismissal of Banks’s

§ 2254 petition as untimely, and remand the matter to the district court for

further proceedings consistent with Jimenez and Womack. See Houser v. Dretke,

395 F.3d 560, 562 (5th Cir. 2004); Whitehead v. Johnson, 157 F.3d 384, 387-88

(5th Cir. 1998). Banks’s motions for leave to file a supplemental brief and for

consideration of Jimenez are also granted.

MOTIONS GRANTED; JUDGMENT VACATED; CASE REMANDED.

Case: 08-10797 Document: 00511133945 Page: 2 Date Filed: 06/07/2010