     Case: 13-40799      Document: 00512519935         Page: 1    Date Filed: 02/03/2014




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

                                      No. 13-40799                                FILED
                                                                           February 3, 2014
                                                                             Lyle W. Cayce
CHARLES J. DAVIS, JR.,                                                            Clerk

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:11-CV-412


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Charles J. Davis, Jr., Texas prisoner # 1509783, was convicted of sexual
assault of a child and tampering with a witness; he was sentenced to 50 years
in prison for the assault conviction and two years in prison for the tampering
conviction. Davis seeks a certificate of appealability (COA) to appeal the
dismissal with prejudice of his 28 U.S.C. § 2254 petition as time barred. A
COA may be issued only if the petitioner “has made a substantial showing of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40799

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).
       Under 28 U.S.C. § 2244(d)(1), in pertinent part, a petitioner must file his
§ 2254 petition within one year from “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking
such review.” § 2244(d)(1)(A). In general, direct review is concluded either
when the Supreme Court rejects a petition for certiorari or rules on its merits,
or when the 90 days allowed for a petition of certiorari to the Supreme Court
following the entry of judgment by the state court of last resort expires.
Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). However, “[i]f the
defendant stops the appeal process before that point, the conviction becomes
final when the time for seeking further direct review in the state court expires.”
Id.
       The one-year period is tolled during the pendency of a properly filed
application for state collateral review.       § 2244(d)(2).     However, state
applications filed after the expiration of the limitations period do not toll the
limitation period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
       Davis avers that the district court erred in failing to accord him an
additional 90 days for the filing of a petition for a writ of certiorari in the
United States Supreme Court following the March 3, 2010, denial of his
petition for discretionary review (PDR).         Davis contends that with the
additional 90 days, his conviction became final on June 1, 2010, and that the

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                                  No. 13-40799

limitations period thus expired a year later or June 1, 2011. He asserts that
because he filed his state habeas application at the earliest on May 11, 2011,
it served to toll the limitations period until its denial on August 10, 2011. Thus,
Davis avers that his § 2254 petition deemed filed on August 19, 2011, was
timely.
      Reasonable jurists could debate whether the district court was correct in
finding that, for limitations purposes, Davis’s conviction was final on March 3,
2010, when the Texas Court of Criminal Appeals denied Davis’s out-of time
PDR, rather than June 1, 2010, when the ninety-day period for filing a petition
for a writ of certiorari in the Supreme Court expired.            See Jimenez v.
Quarterman, 555 U.S. 113, 121 (2009) (holding that “where a state court grants
a criminal defendant the right to file an out-of-time direct appeal during state
collateral review . . . 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; Womack v. Thaler, 591 F.3d 757,
575-58 (5th Cir. 2009) (remanding in light of Jimenez where petitioner had
filed an out-of-time PDR); Roberts, 319 F.3d at 694 (explaining that expiration
of time for seeking direct review includes the 90 days allowed for a petition to
the Supreme Court).       Consequently, reasonable jurists could debate the
propriety of the district court’s procedural ruling. See Slack, 529 U.S. at 484.
Moreover, Davis’s petition also raises reasonably debatable claims of the denial
of constitutional rights. See Jimenez, 555 U.S. at 118 n.3; Slack, 529 U.S. at
484; Womack, 591 F.3d at 758; Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.
2004).
      We therefore grant a COA, vacate the district court’s dismissal of Davis’s
§ 2254 petition, and remand the matter to the district court for further

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                              No. 13-40799

proceedings. We express no opinion on the ultimate disposition of Davis’s
§ 2254 petition.
      MOTION GRANTED; JUDGMENT VACATED; CASE REMANDED.




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