     Case: 08-40831     Document: 00511120118          Page: 1    Date Filed: 05/24/2010




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

                                                  FILED
                                                                            May 24, 2010
                                     No. 08-40831
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

WILLIE L RAY,

                                                   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 Eastern District of Texas
                             USDC No. 6:08-CV-149


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Willie L. Ray, Texas prisoner # 1210691, seeks a certificate of appealability
(COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2254 petition as
time barred under the Antiterrorism and Effective Death Penalty Act’s (AEDPA)
one-year limitations period. See 28 U.S.C. § 2244(d). In his petition, Ray sought
to challenge his 2003 aggravated assault conviction and 45-year sentence of
imprisonment.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-40831      Document: 00511120118 Page: 2      Date Filed: 05/24/2010
                                   No. 08-40831

      To obtain a COA, Ray 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,
484 (2000). When, as here, the district court’s denial of relief is based upon
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.
      The district court dismissed Ray’s § 2254 petition 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), Ray’s out-of-time petition for discretionary review was not part of the
direct review process for purposes of calculating the federal limitations period.
      Following the district court’s dismissal of Ray’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, 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, Ray has shown
that reasonable jurists would debate the correctness of the district court’s
procedural ruling.     Further, we conclude that Ray has satisfied the COA
standard with respect to whether reasonable jurists would debate that his
petition states a valid constitutional claim. See Houser v. Dretke, 395 F.3d 560,
562 (5th Cir. 2004).
      For the foregoing reasons, Ray’s motion for a COA is GRANTED on the
issue whether this petition was barred by the statute of limitations; his motion

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                                No. 08-40831

for leave to proceed in forma pauperis is GRANTED; the district court’s
judgment dismissing Ray’s § 2254 petition as time barred is VACATED; and this
matter is REMANDED to the district court for further proceedings.          See
Womack, 591 F.3d at 758; Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.
1998). Ray’s motions for appointment of appellate counsel and to expedite the
appeal are DENIED. We express no opinion on the ultimate disposition of Ray’s
§ 2254 petition.




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