
    Guy Bernard MUNSCH, Petitioner-Appellant v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
    No. 07-10131.
    United States Court of Appeals, Fifth Circuit.
    April 16, 2009.
    Guy Bernard Munsch, II, Texas Department of Criminal Justice, Institutional Division Neal Unit, Amarillo, TX, pro se.
    Susan Frances San Miguel, Office of the Attorney General Posteonviction Litigation Div., Austin, TX, for Respondent-Appellee.
    Before REAVLEY, SMITH and BARKSDALE, Circuit Judges.
   ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

The Supreme Court vacated this court’s 11 December 2007 order denying Guy Bernard Munsch, II, a certificate of appeala-bility, and remanded this matter for further consideration in the light of Jimenez v. Quarterman, — U.S. -, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009). We VACATE the district court’s 9 January 2007 judgment dismissing Munsch’s 28 U.S.C. § 2254 petition, and REMAND this matter to the district court.

A Texas-state jury convicted Munsch in 1999 of, inter alia, aggravated sexual assault of a child. This judgment was affirmed by the Second District Court of Appeals of Texas in 2001. Munsch did not file a petition for discretionary review by the Texas Court of Criminal Appeals within 30 days, as required by Texas law.

Munsch subsequently filed a motion for state habeas relief, contending counsel had been ineffective because of, inter alia, a failure to timely notify Munsch of his right to petition for discretionary review. The Court of Criminal Appeals granted this motion, permitting Munsch to petition for discretionary review in 2004. The Court of Criminal Appeals denied this petition in 2005, and Munsch filed this federal habeas petition in 2006

Federal habeas petitions are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d). For Munsch, the limitation period began to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”. 28 U.S.C. § 2244(d)(1)(a). The magistrate judge recommended: this period began on 25 June 2001, the deadline for Munsch to have petitioned for discretionary review by the Court of Criminal Appeals; and, accordingly, Munsch’s 2004 federal habeas petition was time-barred. The magistrate judge relied on Salinas v. Dretke, 354 F.3d 425, 430-31 (5th Cir.2004), in stating: “The fact that Munsch was granted an out-of-time petition for discretionary review as a result of his first state habeas action does not effect the running of the limitations period”. The district judge accepted the magistrate judge’s recommendation.

Jimenez held: “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. Accordingly, we VACATE the district court judgment dismissing Munsch’s petition; and REMAND for further proceedings consistent with Jimenez.

VACATED and REMANDED. 
      
      
         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.
     