     Case: 08-30902     Document: 00511109900          Page: 1    Date Filed: 05/13/2010




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

                                                  FILED
                                                                            May 13, 2010
                                     No. 08-30902
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ANTHONY STOKES,

                                                   Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:08-CV-806


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Anthony Stokes, Louisiana prisoner # 477774, seeks a certificate of
appealability (COA) to appeal the dismissal with prejudice of his 28 U.S.C.
§ 2254 petition as time barred. In his § 2254 application Stokes challenged his
conviction of second degree murder and the resulting sentence of life
imprisonment. The district court’s timeliness determination was, in part, based
upon its conclusion that Stokes’s conviction became final prior to the conclusion



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30902    Document: 00511109900 Page: 2         Date Filed: 05/13/2010
                                 No. 08-30902

of his out-of-time appeal for purposes of the limitation period set forth in 28
U.S.C. § 2244(d)(1)(A).
      A COA may be issued only if the applicant “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). When the
district court’s denial of § 2254 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 v. McDaniel, 529 U.S. 473, 484 (2000).
      After the district court issued its judgment in this case, the Supreme Court
held that “where 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).” Jimenez v. Quarterman, 129 S. Ct. 681, 686 (2009). Thus,
“‘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; see also Womack v. Thaler, 591 F.3d 757 (5th Cir.
2009) (applying Jimenez). Consequently, jurists of reason could debate the
propriety of the district court’s procedural ruling. See Slack, 529 U.S. at 484.
Jurists of reason could likewise debate whether Stokes’s § 2254 application
“states a valid claim of the denial of a constitutional right.” Id.
      We therefore grant a COA, vacate the district court’s dismissal of Stokes’s
§ 2254 application as untimely, and remand the matter to the district court for
further proceedings consistent with Jimenez and Womack. See Houser v. Dretke,
395 F.3d 560, 562 (5th Cir. 2004); Whitehead v. Johnson, 157 F.3d 384, 387-88
(5th Cir. 1998).
      COA GRANTED; JUDGMENT VACATED; CASE REMANDED.

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