Willie Ray v. Rick Thaler, Director , 379 F. App'x 364 ( 2010 )


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  •      Case: 08-40831     Document: 00511120118          Page: 1    Date Filed: 05/24/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 24, 2010
    No. 08-40831
    Summary Calendar                         Lyle W. Cayce
    Clerk
    WILLIE L RAY,
    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. 6:08-CV-149
    Before GARZA, CLEMENT, and OWEN, Circuit Judges.
    PER CURIAM:*
    Willie L. Ray, Texas prisoner # 1210691, seeks a certificate of appealability
    (COA) to appeal the district court’s dismissal of his 
    28 U.S.C. § 2254
     petition as
    time barred under the Antiterrorism and Effective Death Penalty Act’s (AEDPA)
    one-year limitations period. See 
    28 U.S.C. § 2244
    (d). In his petition, Ray sought
    to challenge his 2003 aggravated assault conviction and 45-year sentence of
    imprisonment.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-40831      Document: 00511120118 Page: 2      Date Filed: 05/24/2010
    No. 08-40831
    To obtain a COA, Ray must make “a substantial showing of the denial of
    a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2); Slack v. McDaniel, 
    529 U.S. 473
    ,
    484 (2000). When, as here, the district court’s denial of relief is based upon
    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, 
    529 U.S. at 484
    .
    The district court dismissed Ray’s § 2254 petition 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), Ray’s out-of-time petition for discretionary review was not part of the
    direct review process for purposes of calculating the federal limitations period.
    Following the district court’s dismissal of Ray’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, 
    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, Ray has shown
    that reasonable jurists would debate the correctness of the district court’s
    procedural ruling.     Further, we conclude that Ray has satisfied the COA
    standard with respect to whether reasonable jurists would debate that his
    petition states a valid constitutional claim. See Houser v. Dretke, 
    395 F.3d 560
    ,
    562 (5th Cir. 2004).
    For the foregoing reasons, Ray’s motion for a COA is GRANTED on the
    issue whether this petition was barred by the statute of limitations; his motion
    2
    Case: 08-40831   Document: 00511120118 Page: 3     Date Filed: 05/24/2010
    No. 08-40831
    for leave to proceed in forma pauperis is GRANTED; the district court’s
    judgment dismissing Ray’s § 2254 petition as time barred is VACATED; and this
    matter is REMANDED to the district court for further proceedings.          See
    Womack, 
    591 F.3d at 758
    ; Whitehead v. Johnson, 
    157 F.3d 384
    , 388 (5th Cir.
    1998). Ray’s motions for appointment of appellate counsel and to expedite the
    appeal are DENIED. We express no opinion on the ultimate disposition of Ray’s
    § 2254 petition.
    3
    

Document Info

Docket Number: 08-40831

Citation Numbers: 379 F. App'x 364

Judges: Clement, Garza, Owen, Per Curiam

Filed Date: 5/25/2010

Precedential Status: Non-Precedential

Modified Date: 8/3/2023