Cecil Madlock v. Rick Thaler, Director, No. 06-40252 (5th Cir. 2009)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED December 9, 2009 No. 06-40252 Charles R. Fulbruge III Clerk CECIL MADLOCK, 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 East District of Texas USDC No. 6:05-CV-142 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* The Supreme Court vacated this court s April 16, 2007, order denying Cecil Madlock a certificate of appealability (COA), and the Court remanded the matter for further consideration in the light of Jimenez v. Quarterman, 129 S. Ct. 681 (2009). Where 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 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 06-40252 has first sought federal habeas relief, his judgment is not yet final for purposes of § 2244(d)(1)(A). Jimenez, 129 S. Ct at 686. Under Jimenez, Madlock s 28 U.S.C. § 2254 petition was timely. We therefore grant a COA, grant Madlock leave to proceed in forma pauperis (IFP), vacate the district court s judgment of January 10, 2007, that dismissed Madlock s § 2254 petition as untimely, and remand the matter to the district court for consideration of Madlock s constitutional claims in the first instance. See Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004); Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998). COA GRANTED; IFP GRANTED; JUDGMENT VACATED; CASE REMANDED. 2

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