Kenneth Thomas v. Rick Thaler, Director, No. 08-40829 (5th Cir. 2010)

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Case: 08-40829 Document: 00511098348 Page: 1 Date Filed: 05/03/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-40829 Summary Calendar May 3, 2010 Lyle W. Cayce Clerk KENNETH ALAN THOMAS 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. 4:08-CV-16 Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* Kenneth Alan Thomas, Texas prisoner # 407931, seeks a certificate of appealability (COA) to appeal the district court s dismissal as time barred, pursuant to 28 U.S.C. § 2244(d), of his 28 U.S.C. § 2254 petition challenging his conviction for aggravated assault and resulting eight-year sentence. A COA is granted on the issue of whether Thomas s petition was barred by the statute of limitations in light of Womack v. Thaler, 591 F.3d 757 (5th Cir. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-40829 Document: 00511098348 Page: 2 No. 08-40829 Date Filed: 05/03/2010 2009), which was decided after the district court s judgment in the instant case. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We vacate the district court s judgment, and we remand for further proceedings consistent with Womack. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). We express no opinion on the ultimate disposition of Thomas s Section 2254 petition. COA GRANTED; JUDGMENT VACATED; CASE REMANDED. 2

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