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

                                                                  FILED
                                                             December 21, 2007
                                 No. 06-51521
                                                            Charles R. Fulbruge III
                                                                    Clerk
KAREN SIMONE PAULSON

                                           Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, 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. 4:04-CV-11


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Karen Simone Paulson, Texas prisoner # 830155, seeks a certificate of
appealability (COA) and leave to proceed in forma pauperis (IFP) on appeal from
the district court’s dismissal of her 28 U.S.C. § 2254 application for a writ of
habeas corpus as barred by the one-year statute of limitations set forth in 28
U.S.C. § 2244(d). Paulson filed the § 2254 application to attack her conviction
of burglary.



      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-51521

      To obtain a COA, Paulson must make a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
483-84 (2000). When, as in this case, the district court’s denial of habeas relief
is based on procedural grounds without analysis of the underlying constitutional
claims, “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, 529 U.S.
at 484.
      Paulson argues that the district court erred in dismissing her federal
application for a writ of habeas corpus as time barred. She contends that the
district court incorrectly determined the filing dates of her state habeas
applications in calculating the § 2244(d) limitations period. In considering
Paulson’s state habeas corpus applications, the district court did err by relying
on the dates they were filed in the Texas Court of Criminal Appeals rather than
on the dates they were received by the state district courts. However, the
district court did not err in determining that Paulson’s federal habeas
application was untimely filed if the limitations period was calculated 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. Moreover, the district court
did not abuse its discretion in holding that Paulson did not warrant equitable
tolling of the limitations period. See Alexander v. Cockrell, 294 F.3d 626, 629
(5th Cir. 2002).
      Paulson argues, however, that she could not have discovered the factual
predicate underlying her federal habeas claims until February 2003, when she
received transcripts from her co-defendant’s federal trial. Under 28 U.S.C.
§ 2244(d)(1)(D), the limitations period does not begin to run until “the date on
which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” The district court assumed

                                        2
                                   No. 06-51521

without deciding that the proper date for calculating the limitations period
under § 2244(d)(1)(D) would be either the date of Paulson’s co-defendant’s
federal trial or the date on which the transcript of that trial was filed in district
court. The district court correctly held that Paulson’s § 2254 application would
be untimely if the limitations period was calculated based on either of those
dates. However, the district court did not explicitly consider whether the date
Paulson alleges to have discovered the factual predicate underlying her claims,
or any other date, was in fact the date on which she, with due diligence, could
have discovered the factual predicate of her claims. Nor did the district court
explicitly consider whether Paulson’s § 2254 application would have been timely
if the § 2244(d)(1)(D) limitations period had been calculated using such a date.
      Paulson has shown that reasonable jurists could debate whether the
district court erred in its procedural ruling that her § 2254 application was not
timely filed under § 2244(d)(1)(D). Accordingly, a COA is granted on that issue.
The district court’s judgment dismissing Paulson’s § 2254 application is vacated.
The case is remanded so the district court may further consider the timeliness
of Paulson’s § 2254 application under § 2244(d)(1)(D), and conduct any other
proceedings necessary to resolve Paulson’s § 2254 application.
      COA AND IFP GRANTED; JUDGMENT VACATED AND REMANDED
FOR FURTHER PROCEEDINGS.




                                         3
