     Case: 08-10797     Document: 00511133945          Page: 1    Date Filed: 06/07/2010




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

                                                  FILED
                                                                            June 7, 2010
                                     No. 08-10797
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RANDALL L BANKS

                                                   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 Northern District of Texas
                              USDC No. 4:08-CV-45


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Randall L. Banks, Texas prisoner # 1084188, seeks a certificate of
appealability (COA) to appeal the dismissal with prejudice of his 28 U.S.C.
§ 2254 petition as time barred. The district court’s timeliness determination was
grounded in its conclusion that Banks’s out-of-time petition for discretionary
review (PDR) did not toll the period for filing his § 2254 petition or otherwise
affect the limitations period found in 28 U.S.C. § 2244(d).


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10797    Document: 00511133945 Page: 2         Date Filed: 06/07/2010
                                 No. 08-10797

      A COA may be issued only if the petitioner “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 (2009). In Womack
v. Thaler, 591 F.3d 757 (5th Cir. 2009), this court extended the rationale of
Jimenez to a case where the state court granted a criminal defendant the right
to file an out-of-time PDR. 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 Banks’s § 2254 petition “states
a valid claim of the denial of a constitutional right.” Id.
      We therefore grant a COA, vacate the district court’s dismissal of Banks’s
§ 2254 petition 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). Banks’s motions for leave to file a supplemental brief and for
consideration of Jimenez are also granted.
      MOTIONS GRANTED; JUDGMENT VACATED; CASE REMANDED.




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