     Case: 06-11240     Document: 00511013993          Page: 1    Date Filed: 01/27/2010




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

                                                  FILED
                                                                          January 27, 2010

                                     No. 06-11240                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



CARLOS JIMENEZ,

                                                   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, San Angelo
                               USDC No. 6:05-CV-52



 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        The district court held that Carlos Jimenez’s 28 U.S.C. § 2254 habeas
petition was time-barred. The Supreme Court vacated this court’s denial of
Jimenez’s application for a certificate of appealability (“COA”) and remanded 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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case for further proceedings. Jimenez v. Quarterman, 129 S. Ct. 681 (2009).
After the Supreme Court remanded the case, this court granted a COA to review
the district court’s decision that Jimenez’s petition is time-barred. Both parties
agree that the case should be remanded, in part, for further proceedings.
                                        I.
        In 1991, Jimenez pleaded guilty in Texas state court to burglary of a
habitation. He was placed on deferred-adjudication probation for a term of five
years. He did not appeal from the 1991 deferral proceeding.
        In 1995, the state trial court revoked Jimenez’s deferred-adjudication
probation, adjudicated him guilty, and sentenced him to 43 years in prison.
Jimenez’s appellate counsel moved to withdraw pursuant to Anders v.
California, 386 U.S. 738, 744 (1967). Jimenez did not receive a copy of the
Anders brief. The Texas Court of Appeals dismissed the appeal in September
1996.
        Jimenez eventually learned that his appeal had been dismissed. In April
2002, he filed a state habeas application in which he sought leave to file an out-
of-time appeal, arguing that he had been denied his right to an appeal because
his appointed counsel had not informed him of the filing of an Anders brief. That
September, the Texas Court of Criminal Appeals granted Jimenez the right to
file an out-of-time appeal with respect to the 1995 adjudication and sentencing
proceeding.
        In his out-of-time appeal, Jimenez challenged both the 1991 deferral
proceeding and the 1995 adjudication and sentencing proceeding. The state
appellate court refused to consider Jimenez’s claims related to the 1991 deferral
proceeding because he failed to raise them in a timely appeal of the imposition
of deferred adjudication probation. Jimenez v. State, 2003 WL 21087604, at *1
(Tex. App.–Austin 2003). The Court of Criminal Appeals denied Jimenez’s
petition for discretionary review (“PDR”) on October 8, 2003.

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      Jimenez filed a second state habeas application on December 6, 2004.
That petition was denied on June 29, 2005.
      On July 19, 2005, Jimenez filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, in which he challenged both the 1991 deferral
proceeding and the 1995 adjudication and sentencing proceeding. The district
court dismissed the petition as barred by the one-year statute of limitations in
the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §
2244(d)(1)(A) (establishing one-year period of limitation for filing a federal
habeas application running from “the date on which the judgment became final
by the conclusion of direct review or the expiration of the time for seeking such
review”).   With respect to Jimenez’s claims regarding the 1991 deferral
proceeding, the district court found that those claims were time-barred pursuant
to Caldwell v. Dretke, 429 F.3d 521, 528-29 (5th Cir. 2005) (holding that a
deferred adjudication is a separate, final judgment for purposes of triggering the
§ 2244(d)(1)(A) limitations period). With respect to Jimenez’s challenge to the
1995 adjudication and sentencing proceeding, the district court found those
claims to be time-barred because Jimenez’s out-of-time appeal did not affect the
finality of his conviction or reset the limitations period, pursuant to Salinas v.
Dretke, 354 F.3d 425, 430 (5th Cir. 2004) (stating that “when a petitioner
convicted in the Texas system acquires the right to file an ‘out-of-time’ PDR, the
relief tolls AEDPA’s statute of limitations until the date on which the Court of
Criminal Appeals declines to grant further relief, but it does not require a
federal court to restart the running of AEDPA’s limitations period altogether”).
This court denied a COA.
      The Supreme Court of the United States granted certiorari, and vacated
and remanded for further consideration. Jimenez v. Quarterman, 129 S. Ct. 684,
686-87 (2009). The Court held that under § 2244(d)(1)(A), direct review is not



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concluded until the availability of a direct appeal is exhausted. Jimenez, 129
S.Ct. at 686. The Court concluded 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 § 2244(d)(1)(A). In such a case, “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.
Id. at 686-87. Following remand from the Supreme Court, this court granted
a COA authorizing Jimenez to appeal the district court’s determination that his
federal habeas claims were time-barred. We now turn to consider that issue.
                                              II.
       Both parties agree that this case should be remanded to the district court
for further proceedings. Jimenez concedes that his claims regarding his 1991
guilty plea and judgment of deferred adjudication are barred by the statute of
limitations and will not be pursued further. Instead, he requests that the case
be remanded to the district court for an initial consideration of his habeas claims
regarding the 1995 revocation of deferred adjudication. The State agrees that
Jimenez’s claims challenging the 1991 deferral proceeding are untimely, and it
also agrees that his claims challenging the 1995 revocation are timely 1 and that




       1
         The Texas Court of Criminal Appeals denied Jimenez’s PDR on October 8, 2003. His
conviction became final on January 6, 2004, when the time for seeking certiorari review
expired. Jimenez, 129 S. Ct. at 686. Accordingly, Jimenez had until January 6, 2005, to file
his federal habeas petition. The State concedes that the one-year limitations period was tolled
until June 29, 2005, during the pendency of Jimenez’s second state habeas application that
was filed on December 6, 2004. The State concedes further that the deadline for Jimenez’s
federal habeas application was August 1, 2005, and that the petition was timely filed on July
19, 2005.

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the case should be remanded to the district court for initial consideration of
those claims.
      In the light of the parties’ agreement, and our own review of the record
and the Supreme Court’s decision, we AFFIRM the district court’s judgment
insofar as it dismissed as time-barred Jimenez’s claims challenging his 1991
guilty plea and judgment of deferred adjudication. The district court’s judgment
is VACATED insofar as it dismissed as time-barred Jimenez’s claims challenging
the 1995 revocation and sentencing, and the case is REMANDED to the district
court for consideration of those claims in the first instance.
                    AFFIRMED in part; VACATED in part; and REMANDED.




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