     Case: 10-30347     Document: 00511512999          Page: 1    Date Filed: 06/17/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 17, 2011
                                     No. 10-30347
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

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).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                   No. 10-30347

       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 L A. U NIF. C T. A PP. 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 post-
conviction 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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                                No. 10-30347

judgment of the district court and remand for further proceedings consistent
with this opinion.
      JUDGMENT VACATED; CASE REMANDED.




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