     Case: 07-51407     Document: 00511155790          Page: 1    Date Filed: 06/25/2010




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

                                                 FILED
                                                                            June 25, 2010
                                     No. 07-51407
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

NOLAN H WEBB,

                                                   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. 1:07-CV-747


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        On August 18, 2000, Nolan H. Webb, Texas prisoner # 1015595, was
convicted of murder by jury verdict and was sentenced to 50 years of
imprisonment.       After his conviction was affirmed on direct appeal, Webb
obtained leave to file an out-of-time petition for discretionary review (PDR). The
PDR was refused in September 2006, and Webb 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 07-51407     Document: 00511155790 Page: 2       Date Filed: 06/25/2010
                                  No. 07-51407

Supreme Court. He filed the instant 28 U.S.C. § 2254 petition on August 24,
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. Webb now seeks
a certificate of appealability (COA) to appeal that determination. A COA will not
issue unless Webb 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).
        Webb argues that the district court erred by dismissing his petition rather
than issuing him a stay of the limitations period. The district court did not
abuse its discretion by declining to issue a stay under these circumstances. See
Brewer v. Johnson, 139 F.3d 491, 492-93 (5th Cir. 1998). Webb does not warrant
a COA on this basis. See Slack, 529 U.S. at 484.
        After the district court dismissed Webb’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, 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 Webb’s petition was untimely was, in light of Jimenez,
erroneous. See Womack v. Thaler, 591 F.3d 757, 757-58 (5th Cir. 2009). Thus,

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                                 No. 07-51407

Webb has shown that reasonable jurists would debate the correctness of the
district court’s procedural ruling. Because the record before us is not sufficient
to determine whether reasonable jurists could debate whether Webb has made
a valid claim of a constitutional deprivation, a COA should be granted for his
claims. See Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
      For the foregoing reasons, we DENY Webb a COA as to the district court’s
refusal to grant a stay of the limitations period, we GRANT Webb 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 for 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 Webb’s § 2254
petition.




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