     Case: 12-31183       Document: 00512274531         Page: 1     Date Filed: 06/14/2013




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

                                                                            FILED
                                                                           June 14, 2013
                                     No. 12-31183
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JERROD D. JOHNSON,

                                                  Petitioner-Appellant

v.

TIM KEITH, Warden, Winnfield Correctional Center,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:12-CV-2134


Before CLEMENT, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Jerrod D. Johnson, Louisiana prisoner # 542543, moves for a certificate of
appealability (COA) so that he may appeal the district court’s dismissal of his 28
U.S.C. § 2254 application as time barred. He was convicted of three counts of
armed robbery with a firearm.
       Johnson is entitled to a COA if he makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). That is, Johnson must establish that reasonable jurists

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-31183

would find the decision to deny relief debatable or wrong, see Slack v. McDaniel,
529 U.S. 473, 483-84 (2000), or that the issues he presents deserve
encouragement to proceed further, see Miller-El, 537 U.S. at 327. Because the
district court did not reach the merits of Johnson’s claims, we will grant a COA
only if reasonable jurists would debate whether the district court’s time-bar
ruling is correct and whether Johnson has stated a valid claim that he was
denied a constitutional right. See Slack, 529 U.S. at 484; see also Gonzalez v.
Thaler, 132 S. Ct. 641, 648 (2012) (quoting Slack’s two-prong requirement when
the district court denies relief on procedural grounds).
      The federal limitations period does not begin to run until both the
conviction and sentence have become final. Scott v. Hubert, 635 F.3d 659, 664-65
(5th Cir. 2011). The Louisiana appellate court affirmed Johnson’s convictions.
However, it also remanded the case for resentencing. It is unclear from the
record when Johnson was resentenced and whether he appealed the new
sentences. Because it cannot be determined from the record when the time for
seeking direct review of Johnson’s sentences expired, it cannot be determined
when the judgment became final for the purpose of addressing whether his
§ 2254 application is timely. See id. at 666. Accordingly, reasonable jurists
would debate the correctness of the district court’s ruling that the § 2254
application is time barred. See Slack, 529 U.S. at 484. Johnson raised valid
claims of constitutional deprivation in his § 2254 application, including claims
of ineffective assistance of counsel. We express no view on the appropriate
resolution of these claims and observe only that Johnson has made a showing
sufficient to warrant a COA. See Gonzalez, 132 S. Ct. at 648-50; Houser, 395
F.3d at 562. Accordingly a COA is GRANTED as to the district court’s decision
to dismiss the § 2254 application as untimely.
      The district court must resolve the factual question of when Johnson’s
sentence became final, which is not evident from the record before us, and thus
further briefing on this issue before this court would not be helpful. Accordingly,

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                                 No. 12-31183

the judgment is VACATED, and the case is REMANDED to the district court for
further proceedings consistent with this opinion. See Whitehead v. Johnson, 157
F.3d 384, 388 (5th Cir. 1998). Johnson’s motion for leave to file a supplemental
brief is DENIED.




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