Lemons v. Cain, No. 08-30140 (5th Cir. 2010)
Annotate this Case
Download PDF
Case: 08-30140 Document: 00511084167 Page: 1 Date Filed: 04/19/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-30140 Summary Calendar April 19, 2010 Lyle W. Cayce Clerk DONALD RAY LEMONS, Petitioner-Appellant v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent-Appellee Appeal from the United States District Court for the Western District of Louisiana USDC No. 3:07-CV-1451 Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. PER CURIAM:* Donald Ray Lemons, Louisiana prisoner # 432000, appeals the dismissal, as time barred, of his 28 U.S.C. § 2254 petition, which he filed to challenge his jury trial conviction of second degree murder. Lemons contends that his § 2254 petition was timely in light of Jimenez v. Quarterman, 129 S. Ct. 681 (2008). The respondent concedes that Lemons s petition is timely under Jimenez. A one-year limitations period applies to state prisoners filing federal habeas petitions. 28 U.S.C. § 2244(d)(1). In most cases, the limitations period * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30140 Document: 00511084167 Page: 2 No. 08-30140 Date Filed: 04/19/2010 runs from the date that the conviction being challenged became final through the conclusion of direct review or the expiration of the time for seeking such review. § 2244(d)(1)(A). Under Jimenez, when a habeas petitioner is granted the right to file an out-of-time appeal, the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal. Jimenez, 129 S. Ct. at 686-87. Applying the Jimenez rule to the instant case, Lemons s one-year limitation period began to run on or about January 27, 2005, upon expiration of the 90-day period for seeking a writ of certiorari from the United States Supreme Court following the Louisiana Supreme Court s denial, on direct review, of his writ application. See S UP. C T. R. 13.1. On October 28, 2005, approximately 273 days into the limitation period, Lemons filed a state application for post-conviction relief, thereby tolling the limitations period until August 15, 2007, when the Louisiana Supreme Court denied Lemons s writ application. See 28 U.S.C. § 2244(d)(2). Lemons s § 2254 petition, which was filed on August 28, 2007, was timely. In view of the foregoing, we will reverse the judgment of the district court and remand for further proceedings consistent with this opinion. Lemons also argues the merits of certain constitutional claims. Because a COA was not granted as to these issues, we will not consider them in this appeal. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997). REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. 2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
