     Case: 08-30140     Document: 00511084167          Page: 1    Date Filed: 04/19/2010




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

                                                  FILED
                                                                            April 19, 2010
                                     No. 08-30140
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DONALD RAY LEMONS,

                                                   Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:07-CV-1451


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Donald Ray Lemons, Louisiana prisoner # 432000, appeals the dismissal,
as time barred, of his 28 U.S.C. § 2254 petition, which he filed to challenge his
jury trial conviction of second degree murder. Lemons contends that his § 2254
petition was timely in light of Jimenez v. Quarterman, 129 S. Ct. 681 (2008).
The respondent concedes that Lemons’s petition is timely under Jimenez.
        A one-year limitations period applies to state prisoners filing federal
habeas petitions. 28 U.S.C. § 2244(d)(1). In most cases, the limitations period

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30140    Document: 00511084167 Page: 2         Date Filed: 04/19/2010
                                 No. 08-30140

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). 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, 129 S. Ct. at
686-87.
      Applying the Jimenez rule to the instant case, Lemons’s one-year
limitation period began to run on or about January 27, 2005, upon expiration of
the 90-day period for seeking a writ of certiorari from the United States
Supreme Court following the Louisiana Supreme Court’s denial, on direct
review, of his writ application. See S UP. C T. R. 13.1. On October 28, 2005,
approximately 273 days into the limitation period, Lemons filed a state
application for post-conviction relief, thereby tolling the limitations period until
August 15, 2007, when the Louisiana Supreme Court denied Lemons’s writ
application. See 28 U.S.C. § 2244(d)(2). Lemons’s § 2254 petition, which was
filed on August 28, 2007, was timely. In view of the foregoing, we will reverse
the judgment of the district court and remand for further proceedings consistent
with this opinion.
      Lemons also argues the merits of certain constitutional claims. Because
a COA was not granted as to these issues, we will not consider them in this
appeal. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
      REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.




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