     Case: 12-10628      Document: 00512599117         Page: 1    Date Filed: 04/16/2014




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

                                                                                   FILED
                                      No. 12-10628                             April 16, 2014
                                                                              Lyle W. Cayce
DONN DEVERAL MARTIN,                                                               Clerk


                                                 Petitioner–Appellant
v.

WILLIAM STEPHENS, 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. 4:11-CV-447


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Donn Deveral Martin, Texas prisoner # 1454022, seeks a certificate of
appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C.
§ 2254 application for federal habeas corpus relief. The district court dismissed
Martin’s petition for habeas relief on procedural grounds. The district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-10628     Document: 00512599117      Page: 2    Date Filed: 04/16/2014



                                  No. 12-10628
adopted the magistrate judge’s conclusion that because Martin’s convictions
became final on August 11, 2009, Martin’s “petition, deemed filed on June 23,
2011, is untimely” under the one-year statute of limitations prescribed in 28
U.S.C. § 2244(d). The district court did not decide or consider the merits of
Martin’s constitutional claims.
      We then denied Martin’s motion for a COA, noting that Martin had not
shown “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).
      The Supreme Court vacated judgment on December 6, 2013, and
remanded this case for reconsideration in light of its opinion in McQuiggin v.
Perkins, 133 S. Ct. 1924 (2013).      There, the Supreme Court held, “actual
innocence, if proved, serves as a gateway through which a petitioner may pass
[if] the impediment is . . . expiration of the statute of limitations.” Id. at 1928.
      In light of Perkins, this Court finds “that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484. Moreover, because the district court understandably
focused on the statute-of-limitations issue, we do not have an adequate record
on the merits to determine whether Martin’s actual-innocence claim was
meritless. See Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). Accordingly,
we GRANT the COA and REMAND this case for reconsideration of Martin’s
actual-innocence claim in light of Perkins. As to Martin’s other claims, we
DENY Martin’s COA. We express no opinion on the ultimate disposition of
Martin’s § 2254 petition.




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