     Case: 07-10962     Document: 00511150650          Page: 1    Date Filed: 06/22/2010




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

                                                 FILED
                                                                            June 22, 2010
                                     No. 07-10962
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

STACY EUGENE MILLER,

                                                   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 Northern District of Texas
                              USDC No. 3:06-CV-1221


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Following a jury trial, Stacy Eugene Miller, Texas prisoner # 910804, was
convicted of theft of property with a value of at least $200,000, and the trial
court sentenced him to serve 30 years in prison. The intermediate appellate
court affirmed his conviction on direct appeal, and Miller 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


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-10962

Criminal Appeals (TCCA) refused the PDR, Miller brought a state postconviction
application challenging his conviction; the TCCA denied this application.
      Miller then sought relief in federal court by filing the instant 28 U.S.C.
§ 2254 petition, which the district court dismissed as barred by the applicable
one-year statute of limitations. This dismissal was based on the district court’s
conclusion that, in light of Salinas v. Dretke, 354 F.3d 425 (5th Cir. 2004),
Miller’s out-of-time PDR was not part of the direct review process for purposes
of calculating the federal limitations period. We are now presented with Miller’s
request for a certificate of appealability (COA) to appeal that determination.
      In order to obtain a COA, one must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(1)(A), (2). When, as is the
case 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 Miller’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 Miller’s petition was untimely was, in light of Jimenez, erroneous.
See Womack v. Thaler, 591 F.3d 757, 757-58 (5th Cir. 2009). Consequently,
Miller has shown that reasonable jurists would debate the correctness of the
district court’s procedural ruling. Further, we conclude that Miller has satisfied
the COA standard with respect to whether reasonable jurists would debate that

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                                 No. 07-10962

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 Miller a COA on the issue 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 Miller’s § 2254 petition.




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