     Case: 07-50857     Document: 00511102567          Page: 1    Date Filed: 05/06/2010




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

                                                  FILED
                                                                             May 6, 2010
                                     No. 07-50857
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

PETE GUTIERREZ,

                                                   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 Western District of Texas
                             USDC No. 1:06-CV-917


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Pete Gutierrez, Texas prisoner # 1030607, was convicted in 2001 of murder
and sentenced to 50 years in prison. After his conviction was affirmed on direct
appeal, Gutierrez filed a state postconviction application seeking leave to file an
out-of-time petition for discretionary review (PDR), which was granted. After
the Texas Court of Criminal Appeals refused the PDR in 2004, Gutierrez
unsuccessfully sought certiorari from the Supreme Court. He then brought a


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-50857

state postconviction application challenging his conviction. After relief was
denied, he filed the instant 28 U.S.C. § 2254 petition on November 9, 2006, when
he deposited it in the prison mail system. See Spotville v. Cain, 149 F.3d 374,
376-78 (5th Cir. 1998).
      The district court dismissed the petition as barred by the applicable one-
year statute of limitations, concluding, in light of Salinas v. Dretke, 354 F.3d 425
(5th Cir. 2004), that the out-of-time PDR did not reinstate the direct review
process for purposes of resetting the federal limitations period. Gutierrez now
seeks a certificate of appealability (COA) to appeal that determination.
      In order to obtain a COA, the movant must make a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)(A), (2). When, as
here, the district court’s denial of federal habeas relief is based solely on
procedural grounds, “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).
      Following the district court’s dismissal of Gutierrez’s petition, the
Supreme Court held that when “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” the one-year limitations period. Jimenez v. Quarterman,
   U.S.   , 129 S. Ct. 681, 686 (2009). Although the district court did not have
the benefit of the Supreme Court’s opinion in Jimenez, its reliance on Salinas to
conclude that Gutierrez’s petition was untimely was, in light of Jimenez,
erroneous. See Womack v. Thaler, 591 F.3d 757, 757-58 (5th Cir. 2009). Thus,
Gutierrez has shown that reasonable jurists would debate the correctness of the
district court’s procedural ruling. Further, we conclude that Gutierrez has
satisfied the COA standard with respect to whether reasonable jurists would

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                                 No. 07-50857

debate that his petition states a valid constitutional claim. See Houser v. Dretke,
395 F.3d 560, 562 (5th Cir. 2004).
      For the foregoing reasons, we GRANT Gutierrez a COA on whether his
petition was barred by the statute of limitations in light of Jimenez, we VACATE
the district court’s judgment, and we REMAND for further proceedings
consistent with Jimenez. See Womack, 591 F.3d at 758; Whitehead v. Johnson,
157 F.3d 384, 388 (5th Cir. 1998). We express no opinion on the ultimate
disposition of Gutierrez’s § 2254 petition.




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