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

                                                 FILED
                                                                        September 22, 2009
                                     No. 08-40369
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ROBERT KELLY RAWLES

                                                   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 Eastern District of Texas
                              USDC No. 5:07-CV-42


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A jury convicted Robert Kelly Rawles, Texas prisoner # 1086887, of
aggravated sexual assault of a child and sentenced him to 20 years in prison.
Rawles initially did not appeal the decision, but later was permitted to file an
out-of-time appeal by the Texas Court of Criminal Appeals. The district court
dismissed his 28 U.S.C. § 2254 application as time barred, and this court denied




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40369

a COA. However, we granted Rawles’s motion for reconsideration in light of the
Supreme Court’s decision in Jimenez v. Quarterman, 129 S. Ct. 681 (2009).
      A COA will issue only if Rawles has made a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Because his habeas
application was dismissed on procedural grounds, Rawles must show “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).
      Jimenez instructs that, in cases such as this, the one-year limitation period
in 28 U.S.C. § 2244(d)(1)(A) begins when the out-of-time appeal becomes final.
129 S. Ct. at 685-87. We thus conclude that Rawles’s application was filed
timely. Accordingly, we turn to the question of whether Rawles has stated a
valid claim for the denial of a constitutional right. See Slack, 529 U.S. at 484;
Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
      Rawles asserts, inter alia, that his trial counsel was ineffective because
counsel failed to call any witnesses or to offer any evidence in support of
Rawles’s alibi claim or his defense that he could not have committed the crime
because the victim had a venereal disease and he did not. Rawles also raised
these claims in his out-of-time appeal in state court. The state appeals court
declined to decide the issues because the record did not reflect facts necessary
to support the claims.
      Because the district court did not consider the substance of Rawles’s
claims, the record remains insufficiently developed with respect to his claims
that counsel was ineffective. We therefore grant Rawles a COA on the issue of
the timeliness of his § 2254 application. See Houser, 395 F.3d at 562. The
judgment of the district court denying a COA on the timeliness issue is vacated,
and we remand this case for consideration of the substance of Rawles’s habeas



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                               No. 08-40369

claims. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). We
express no sentiment on the ultimate outcome of the proceedings.
     COA GRANTED; VACATED; REMANDED.




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