Summary Calendar NATH CROCKETT WOMACK v. Rick Thaler, Director, Texas Department of Criminal Justice, Correctional…

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-40478
Summary Calendar
NATH CROCKETT WOMACK
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 Southern District of Texas
Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:
Following a jury trial, Nath Crockett Womack, Texas prisoner # 803963,
was convicted of murder and was sentenced to serve life in prison. Initially,
Womack did not file a petition for discretionary review (PDR) with respect to this
judgment, but the Texas Court of Criminal Appeals later granted him
authorization to proceed with an out-of-time PDR.
The instant appeal arises from the district court’s denial of Womack’s
28 U.S.C. § 2254 habeas corpus petition as untimely. This denial was grounded
in the district court’s determination that Womack’s out-of-time PDR did not toll
the period for filing his § 2254 petition or otherwise affect the limitations period
United States Court of Appeals
Fifth Circuit
F I L E D
December 21, 2009
Charles R. Fulbruge III
Clerk

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No. 08-40478
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found in 28 U.S.C. § 2244(d). Relying upon Jimenez v. Quarterman, 129 S. Ct.
681 (2009), Womack argues that this decision was incorrect and that the time
for filing his § 2254 petition began to run after the conclusion of proceedings
related to his out-of-time PDR. The Respondent agrees that the district court
incorrectly dismissed Womack’s § 2254 petition as untimely in light of Jimenez
and requests that the judgment be vacated and the case remanded for further
proceedings.
This court conducts a de novo review of the district court’s determination
that Womack’s § 2254 petition was untimely. See Emerson v. Johnson, 243 F.3d
931, 932 (5th Cir. 2001). In Jimenez, the Court held that “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 has first sought federal habeas
relief, his judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A).” 129 S. Ct.
at 686. Consequently, the district court’s determination of untimeliness was
incorrect on the facts before us. Moreover, Womack’s petition complies with
Slack v. McDaniel, 529 U.S. 473, 484 (2000), insofar as it also raises reasonably
debatable claims of the denial of constitutional rights. See Jimenez, 129 S. Ct.
at 684 n.3 (emphasizing Slack’s requirement that, when a district court denies
a habeas petition on procedural grounds, an appellate court should grant a
Certificate of Appealability only if the prisoner shows that reasonable jurists
could debate both whether the petition states a valid claim of constitutional
violation and whether the district erred procedurally).
We VACATE the judgment of the district court and REMAND for further
proceedings consistent with Jimenez. We express no opinion on the ultimate
disposition of Womack’s § 2254 petition.

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