IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals 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,

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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,

. Under Jimenez, Madlock’s

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,

(5th Cir. 2004); Whitehead v. Johnson,

(5th Cir. 1998). COA GRANTED; IFP GRANTED; JUDGMENT VACATED; CASE REMANDED.

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