     Case: 08-40687     Document: 00511112729          Page: 1    Date Filed: 05/17/2010




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

                                                  FILED
                                                                            May 17, 2010
                                     No. 08-40687
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MICHAEL WAYNE CRAIG,

                                                   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 Eastern District of Texas
                             USDC No. 5:07-CV-167


Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
        Michael Wayne Craig, Texas prisoner # 1085917, was convicted in 2002 of
driving while intoxicated (third or more offense) and sentenced to life
imprisonment.       After his conviction was affirmed on direct appeal, Craig
obtained leave to file an out-of-time petition for discretionary review (PDR). The
PDR was refused in April 2007, and Craig did not seek certiorari from the




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-40687   Document: 00511112729 Page: 2        Date Filed: 05/17/2010
                                No. 08-40687

Supreme Court. He filed the instant 28 U.S.C. § 2254 petition on October 31, 2007.
      The district court dismissed the petition as barred by the applicable one-
year statute of limitations, holding, 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 limitation period. Craig now seeks
a certificate of appealability (COA) to appeal that determination. A COA will not
issue unless Craig makes 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).
      After the district court dismissed Craig’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 limitation period. Jimenez v. Quarterman, _ U.S. _ , 129 S. Ct.
681, 686 (2009) (internal quotation marks omitted). Although the district court
did not have the benefit of the Supreme Court’s opinion in Jimenez, its reliance
on Salinas to conclude that Craig’s petition was untimely was, in light of
Jimenez, erroneous. See Womack v. Thaler, 591 F.3d 757, 757-58 (5th Cir. 2009).
Thus, Craig has shown that reasonable jurists would debate the correctness of
the district court’s procedural ruling. On the record before us, we conclude
further that Craig has satisfied the COA standard with respect to averring a
facially valid constitutional claim. See Houser v. Dretke, 395 F.3d 560, 562 (5th
Cir. 2004).



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                                No. 08-40687

      For the foregoing reasons, we GRANT Craig a COA on the question
whether his petition was barred by the statute of limitations in light of Jimenez,
we VACATE the district court’s judgment, and we REMAND to the district court
to address the merits of the habeas claims in the first instance. 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 Craig’s § 2254 petition.




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