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

                                                 FILED
                                                                         December 9, 2009

                                       No. 06-40252                    Charles R. Fulbruge III
                                                                               Clerk

CECIL MADLOCK,

                                                   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 East District of Texas
                              USDC No. 6:05-CV-142


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       The Supreme Court vacated this court’s April 16, 2007, order denying Cecil
Madlock a certificate of appealability (COA), and the Court remanded the matter
for further consideration in the light of Jimenez v. Quarterman, 129 S. Ct. 681
(2009). “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

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 06-40252

has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes
of § 2244(d)(1)(A).” Jimenez, 129 S. Ct at 686. Under Jimenez, Madlock’s
28 U.S.C. § 2254 petition was timely.
      We therefore grant a COA, grant Madlock leave to proceed in forma
pauperis (IFP), vacate the district court’s judgment of January 10, 2007, that
dismissed Madlock’s § 2254 petition as untimely, and remand the matter to the
district court for consideration of Madlock’s constitutional claims in the first
instance. 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; IFP GRANTED; JUDGMENT VACATED; CASE
REMANDED.




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