                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 9, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-41186
                         Summary Calendar



CARL RAYMOND DOLAN,

                                    Petitioner-Appellant,

versus

DOUG DRETKE, 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. 4:03-CV-223
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Carl Raymond Dolan, Texas prisoner # 1004499, seeks a

certificate of appealability (“COA”) to appeal the dismissal of

his 28 U.S.C. § 2254 petition, wherein he challenged his

conviction for aggravated sexual assault.   The district court

dismissed Dolan’s petition as time-barred by the one-year

limitations period of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), 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this opinion should not be published and is not precedent except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.
                           No. 03-41186
                                -2-

     To obtain a COA, a prisoner must make a substantial showing

of the denial of a constitutional right.    28 U.S.C. § 2253(c)(2);

see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).    “When the

district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim,

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).

     Dolan challenges the district court’s determination that his

conviction became final on October 21, 2001, which is 30 days

after the state appellate court affirmed the conviction on direct

appeal and the date that the statutory time for filing a petition

for discretionary review (“PDR”) expired.    Under 28 U.S.C.

§ 2244(d), the limitations period commences on the date that the

judgment in question “became final by the conclusion of direct

review or the expiration of the time for seeking such review.”

28 U.S.C. § 2244(d)(1)(A)(emphasis added).    Under Texas law, “a

PDR is considered to be part of the direct review process, which

ends when the petition is denied or when the time available for

filing lapses.”   Salinas v. Dretke, 354 F.3d 425, 428 (5th Cir.),

cert. denied, 541 U.S. (2004).   In Dolan’s case, the time

available for filing a PDR lapsed when the extension of time
                             No. 03-41186
                                  -3-

granted by the Texas Court of Criminal Appeals for filing a PDR

expired on December 21, 2001.    Thus, the district court erred in

finding that Dolan’s conviction became final before that date.

     Dolan had one year, or until December 21, 2002, to file his

federal petition.    Dolan filed a state habeas application on

December 15, 2001, thereby stopping the federal clock with six

days remaining.     See 28 U.S.C. § 2244(d)(2).   The federal

limitations period remained tolled until the state habeas

application was denied on May 7, 2003.      Because Dolan did not

file his 28 U.S.C. § 2254 petition until May 20, 2003, the

petition was time-barred absent tolling.

     Dolan argues that under the “mailbox rule” his state habeas

application should be deemed filed on December 5, 2002, when he

presented it to prison authorities for mailing.      We have already

rejected the application of the mailbox rule for determining the

filing dates of state habeas corpus petitions.      See Coleman v.

Johnson, 184 F.3d 398, 402 (5th Cir. 1999).

     Dolan argues further that he is entitled to equitable

tolling of the limitations period for (1) the delay between the

date he presented his state habeas application to prison

authorities for mailing and the date when the application was

stamped in the state court, and (2) the delay from the date that

the state habeas court denied his application and the date that

he received notice that the application had been denied.

Equitable tolling may be appropriate for these delays.      See
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                                 -4-

Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), reh’g granted

and modified in part on other grounds, 223 F.3d 797 (2000);

Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).

        The district court did not address Dolan’s equitable

tolling arguments, however, and we have no district court

decision denying equitable tolling to review.    We conclude that

Dolan has shown that reasonable jurists would find it debatable

whether the district court’s procedural ruling was correct.      See

Slack, 529 U.S. at 484.    Based on the materials of record, it is

impossible to determine whether reasonable jurists would also

debate whether the claims raised by Dolan in his 28 U.S.C. § 2254

petition are valid claims of a constitutional deprivation.       See

Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).    We

therefore GRANT a COA, VACATE the district court’s judgment, and

REMAND the matter to the district court to consider in the first

instance Dolan’s equitable tolling claims.    See Whitehead v.

Johnson, 157 F.3d 384, 388 (5th Cir. 1998).    The district court

should determine inter alia when Dolan first received notice of

the denial of his state habeas application and whether he

diligently pursued his federal habeas rights.    See Phillips,

216 F.3d at 511.    Dolan bears the burden on remand to prove the

factual predicates for equitable tolling.     Phillips, 223 F.3d at

797.    If the district court determines that equitable tolling is

warranted, it should then consider the merits of the petition.

       COA GRANTED; VACATED and REMANDED.
