Jennings v. LA Corrtl Institute

Filing

UNPUBLISHED OPINION FILED. [09-30019 Reversed and Remanded] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 01/13/2011; denying motion to appoint counsel filed by Appellant Ms. Kathleen Jennings [6508992-2] [09-30019]

Jennings v. LA Corrtl Institute Case: 09-30019

Document: 00511331018 Page: 1 Date Filed: 12/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30019 S u m m a r y Calendar December 23, 2010 Lyle W. Cayce Clerk

K A T H L E E N JENNINGS, P e titio n e r­ A p p e lla n t, v. J I M ROGERS, Warden, Louisiana Correctional Institute for Women, 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 Western District of Louisiana U S D C No. 3:08-CV-304

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* K a t h le e n Jennings, Louisiana prisoner # 468423, appeals the dismissal, a s time barred, of her 28 U.S.C. § 2254 petition, which she filed to challenge her ju r y trial conviction of second degree murder. Jennings contends that her § 2254 p e t it io n was timely in light of Jimenez v. Quarterman, 129 S. Ct. 681 (2009). A one-year limitations period applies to state prisoners filing federal h a b e a s petitions. 28 U.S.C. § 2244(d)(1). In most cases, the limitations period r u n s from the date that the conviction being challenged became final through
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Dockets.Justia.com

Case: 09-30019 Document: 00511331018 Page: 2 Date Filed: 12/23/2010 No. 09-30019 " t h e conclusion of direct review or the expiration of the time for seeking such r e v i e w ." Id. § 2244(d)(1)(A). Under Jimenez, when a habeas petitioner is

g r a n t e d the right to file an out-of-time appeal, "`the date on which the judgment b e c a m e final by the conclusion of direct review or the expiration of the time for s e e k in g such review' must reflect the conclusion of the out-of-time direct appeal, o r the expiration of the time for seeking review of that appeal." Jimenez, 129 S . Ct. at 686-87 (quoting 28 U.S.C. § 2244(d)(1)(A)). A c c o r d in g ly , Jennings' one-year limitation period began to run upon e x p ir a t io n of the 90-day period for seeking a writ of certiorari from the United S t a te s Supreme Court following the Louisiana Supreme Court's denial, on direct r e v ie w , of her writ application. See SUP. CT. R. 13.1. In view of the foregoing, we r e v e r s e the judgment of the district court and remand for further proceedings c o n s is t e n t with this opinion. J e n n in g s also argues the merits of her constitutional claims. Because a C O A was not granted as to these issues, we will not consider them in this a p p e a l. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997). JU D G M E N T REVERSED; CASE REMANDED; MOTION FOR

A P P O I N T M E N T OF COUNSEL DENIED.

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