Randall Banks v. Rick Thaler, Director

Filing 511133945

Randall Banks v. Rick Thaler, Director

Doc. 511133945

Case: 08-10797

Document: 00511133945

Page: 1

Date Filed: 06/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-10797 S u m m a r y Calendar June 7, 2010 Lyle W. Cayce Clerk

R A N D A L L L BANKS P e titio n e r -A p p e lla n t v. R IC K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, C O R R E C T I O N A L INSTITUTIONS DIVISION R e s p o n d e n t-A p p e lle e

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:08-CV-45

B e fo r e DAVIS, SMITH, and DENNIS, Circuit Judges. P E R CURIAM:* R a n d a ll L. Banks, Texas prisoner # 1084188, seeks a certificate of a p p e a la b i l i t y (COA) to appeal the dismissal with prejudice of his 28 U.S.C. § 2254 petition as time barred. The district court's timeliness determination was g r o u n d e d in its conclusion that Banks's out-of-time petition for discretionary r e v ie w (PDR) did not toll the period for filing his § 2254 petition or otherwise a ffec t the limitations period found in 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

Case: 08-10797

Document: 00511133945 Page: 2 No. 08-10797

Date Filed: 06/07/2010

A COA may be issued only if the petitioner "has made a substantial s h o w in g of the denial of a constitutional right." 28 U.S.C. § 2253(c). When the d is t r ic t court's denial of § 2254 relief is based on procedural grounds without a n a ly sis of the underlying constitutional claims, "a COA should issue when the p r is o n e r shows, at least, that jurists of reason would find it debatable whether t h e petition states a valid claim of the denial of a constitutional right and that ju r is ts 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). A ft e r the district court issued its judgment in this case, the Supreme Court h e ld that "where a state court grants a criminal defendant the right to file an o u t-o f-t im e direct appeal during state collateral review, but before the defendant h a s first sought federal habeas relief, his judgment is not yet `final' for purposes o f § 2244(d)(1)(A)." Jimenez v. Quarterman, 129 S. Ct. 681 (2009). In Womack v . Thaler, 591 F.3d 757 (5th Cir. 2009), this court extended the rationale of J im e n e z to a case where the state court granted a criminal defendant the right t o file an out-of-time PDR. Consequently, jurists of reason could debate the p r o p r ie t y of the district court's procedural ruling. See Slack, 529 U.S. at 484. J u r is ts of reason could likewise debate whether Banks's § 2254 petition "states a valid claim of the denial of a constitutional right." Id. W e therefore grant a COA, vacate the district court's dismissal of Banks's § 2254 petition as untimely, and remand the matter to the district court for fu r t h e r proceedings consistent with Jimenez and Womack. See Houser v. Dretke, 3 9 5 F.3d 560, 562 (5th Cir. 2004); Whitehead v. Johnson, 157 F.3d 384, 387-88 (5 t h Cir. 1998). Banks's motions for leave to file a supplemental brief and for co n sid e ra tio n of Jimenez are also granted. M O T I O N S GRANTED; JUDGMENT VACATED; CASE REMANDED.

2