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

                                                 FILED
                                                                           March 25, 2009
                                     No. 05-41136
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

JESSIE JONES, III

                                                   Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, 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. 1:02-CV-673


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Jessie Jones, III, Texas prisoner # 905756, was convicted by a jury of
attempted capital murder and was sentenced by the trial court to seventy-five
years of imprisonment. The district court denied Jones’s 28 U.S.C. § 2254
petition, concluding in relevant part that Jones’s assertion that trial counsel
rendered ineffective assistance by failing to give Jones proper advice that would
have enabled him to make an informed decision whether to have the trial court


       *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
                                  No. 05-41136

or the jury assess punishment was procedurally defaulted. Jones contends that
this claim, raised for the first time in a supplement to Jones’s first state
postconviction application, was not procedurally defaulted. Because the Texas
Court of Criminal Appeals “denied” Jones’s first postconviction application, it did
not explicitly rely on a state procedural rule to adjudicate Jones’s ineffective
assistance claim. See Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000);
Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997). Moreover, there is no evidence
that Texas courts consistently hold that supplements to a pending first
postconviction application are successive, and no rule requires such a dismissal
in a noncapital case. See Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996).
      The respondents contend for the first time on appeal that Jones’s § 2254
petition is untimely because Jones failed to notify the district court that the
Texas Court of Criminal Appeals had ruled on his second state postconviction
application before the district court awarded a stay in the federal proceedings
so that Jones could exhaust his state remedies through that second application.
The respondents alternatively assert that the one-year period continued to run
when Jones failed to notify the district court of the Texas Court of Criminal
Appeals’s ruling within thirty days. Because the respondent has raised these
claims for the first time on appeal and Jones did not have notice or an
opportunity to respond to this assertion, we decline to exercise any jurisdiction
to consider the claim at this time. See Fisher v. Texas, 169 F.3d 295, 300–02 (5th
Cir. 1999). Consequently, the judgment of the district court is VACATED and
the case is REMANDED for further proceedings in light of this ruling.




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