Stacy Miller v. Rick Thaler, Director , 384 F. App'x 310 ( 2010 )


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  •      Case: 07-10962     Document: 00511150650          Page: 1    Date Filed: 06/22/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    June 22, 2010
    No. 07-10962
    Summary Calendar                         Lyle W. Cayce
    Clerk
    STACY EUGENE MILLER,
    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. 3:06-CV-1221
    Before DAVIS, SMITH, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Following a jury trial, Stacy Eugene Miller, Texas prisoner # 910804, was
    convicted of theft of property with a value of at least $200,000, and the trial
    court sentenced him to serve 30 years in prison. The intermediate appellate
    court affirmed his conviction on direct appeal, and Miller filed a state
    postconviction application seeking leave to file an out-of-time petition for
    discretionary review (PDR), which was granted.                 After the Texas Court of
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 07-10962    Document: 00511150650 Page: 2        Date Filed: 06/22/2010
    No. 07-10962
    Criminal Appeals (TCCA) refused the PDR, Miller brought a state postconviction
    application challenging his conviction; the TCCA denied this application.
    Miller then sought relief in federal court by filing the instant 
    28 U.S.C. § 2254
     petition, which the district court dismissed as barred by the applicable
    one-year statute of limitations. This dismissal was based on the district court’s
    conclusion that, in light of Salinas v. Dretke, 
    354 F.3d 425
     (5th Cir. 2004),
    Miller’s out-of-time PDR was not part of the direct review process for purposes
    of calculating the federal limitations period. We are now presented with Miller’s
    request for a certificate of appealability (COA) to appeal that determination.
    In order to obtain a COA, one must make a substantial showing of the
    denial of a constitutional right. 
    28 U.S.C. § 2253
    (c)(1)(A), (2). When, as is the
    case here, the district court’s denial of federal habeas relief is based solely on
    procedural grounds, “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).
    Following the district court’s dismissal of Miller’s petition, the Supreme
    Court held that when “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” the one-year limitations period. Jimenez v. Quarterman,      U.S.
    , 
    129 S. Ct. 681
    , 686 (2009). Although the district court did not have the
    benefit of the Supreme Court’s opinion in Jimenez, its reliance on Salinas to
    conclude that Miller’s petition was untimely was, in light of Jimenez, erroneous.
    See Womack v. Thaler, 
    591 F.3d 757
    , 757-58 (5th Cir. 2009). Consequently,
    Miller has shown that reasonable jurists would debate the correctness of the
    district court’s procedural ruling. Further, we conclude that Miller has satisfied
    the COA standard with respect to whether reasonable jurists would debate that
    2
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    No. 07-10962
    his petition states a valid constitutional claim. See Houser v. Dretke, 
    395 F.3d 560
    , 562 (5th Cir. 2004).
    For the foregoing reasons, we GRANT Miller a COA on the issue whether
    his petition was barred by the statute of limitations in light of Jimenez, we
    VACATE the district court’s judgment, and we REMAND for further proceedings
    consistent with Jimenez. See Womack, 
    591 F.3d at 758
    ; Whitehead v. Johnson,
    
    157 F.3d 384
    , 388 (5th Cir. 1998). We express no opinion on the ultimate
    disposition of Miller’s § 2254 petition.
    3
    

Document Info

Docket Number: 07-10962

Citation Numbers: 384 F. App'x 310

Judges: Davis, Dennis, Per Curiam, Smith

Filed Date: 6/24/2010

Precedential Status: Non-Precedential

Modified Date: 8/3/2023