IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30347

Summary Calendar

RONALD G. STEWART,

Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:08-CV-641

Before KING, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

PER CURIAM:

*

Ronald G. Stewart, Louisiana prisoner # 307065, appeals the dismissal of

his 28 U.S.C. § 2254 application as time-barred. Stewart’s application

challenged his convictions for armed robbery, attempted second-degree murder,

and second degree murder. He contends that his § 2254 application was timely

in light of Jimenez v. Quarterman, 555 U.S. 113, 129 S. Ct. 681 (2009), and

Melancon v. Kaylo, 259 F.3d 401 (5th Cir. 2001).

United States Court of Appeals

Fifth Circuit

F I L E D

June 17, 2011

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. 10-30347

A one-year limitations period applies to state prisoners filing federal

habeas petitions. 28 U.S.C. § 2244(d)(1). In most cases, this limitations period

runs from the date that the conviction being challenged became final through

“the conclusion of direct review or the expiration of the time for seeking such

review.” § 2244(d)(1)(A). Stewart did not file a direct appeal; however, as a

result of his initial state post-conviction relief application, he was granted

permission to file an out-of-time appeal. He argues that, in light of Jimenez, his

conviction was not final for federal limitations purposes until this out-of-time

appeal was denied.

Under Jimenez, when a habeas petitioner is granted the right to file an

out-of-time appeal, “‘the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review’

must reflect the conclusion of the out-of-time direct appeal, or the expiration of

the time for seeking review of that appeal.” Jimenez, 555 U.S. at __, 129 S. Ct.

at 686-87. However, Respondent asserts that, as a result of the retroactivity

rules of Teague v. Lane, 489 U.S. 288 (1989), Jimenez does not apply to Stewart’s

application. This assertion is incorrect. Teague addressed whether a rule of

criminal procedure relating to a petitioner’s underlying trial and conviction

should be applied retroactively. See Teague, 489 U.S. at 299-316. In contrast,

Jimenez involved the Supreme Court’s interpretation of a federal statute,

§ 2244(d)(1)(A), which provides a statute of limitations for § 2254 applications.

See Jimenez, 129 S. Ct. at 685. In addition, in several unpublished opinions, we

have applied Jimenez to cases involving similar facts. See Brooks v. Cain, 354

F. App’x 870, 872 (5th Cir. 2009); Lemons v. Cain, 373 F. App’x 487, 488 (5th Cir.

2010). Because Stewart’s conviction was not “final” until after the disposition

of his out-of-time appeal, the one-year limitations period did not begin to run

until September 22, 2005, upon expiration of the 90-day period for seeking a writ

of certiorari from the United States Supreme Court.

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Stewart also argues that the district court erred in finding that his

untimely appeal of his second post-conviction relief application was not “properly

filed” and, thus, that it did not toll the federal limitations period.

See § 2244(d)(2). Relying on Melancon v. Kaylo, 259 F.3d 401 (5th Cir. 2001),

Stewart asserts that, because an exception to the time limit allowed the state

appellate court to consider his writ application, and because the state court did

consider his writ application on its merits, the writ application was “properly

filed” and tolled the limitations period. See also LA. UNIF. CT. APP. R. 4-3.

In Melancon, we determined that an untimely writ application was

nevertheless “properly filed” for § 2244(d)(2) purposes because an exception to

the time limit allowed the state court to consider the writ application on the

merits, and the court did consider it on the merits. Melancon, 259 F.3d at 405;

accord Grillette v. Warden, 372 F.3d 765, 770 n.5 (5th Cir. 2004). In the instant

case, the state appellate court did not clearly indicate that it had considered the

writ application on its merits; however, we have held that opinions from

Louisiana appellate courts “routinely and unmistakably indicate” when a writ

application has been denied as untimely. See Grillette, 372 F.3d at 775.

Therefore, in light of Melancon, Stewart’s writ application was “properly filed”

and tolled the federal limitations period. See Melancon, 259 F.3d at 405.

Accordingly, Stewart’s conviction was final and the federal limitations

period began to run on September 22, 2005. Stewart’s second post-conviction

relief application, filed on August 11, 2005, tolled the federal limitations period

until January 27, 2006, when he failed to file a timely writ application. Three

days of the federal limitations period ran until January 30, 2006, when his writ

application was filed with the state appellate court. See Melancon, 295 F.3d at

407. When the Louisiana Supreme Court finally denied Stewart’s postconviction relief application on February 1, 2008, 362 days of the federal

limitations period remained. Therefore, Stewart’s § 2254 application, which was

filed on October 6, 2008, was timely. In view of the foregoing, we vacate the

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judgment of the district court and remand for further proceedings consistent

with this opinion.

JUDGMENT VACATED; CASE REMANDED.

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