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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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

, 562 (5th Cir. 2004); Whitehead v.
Johnson, 

, 387-88 (5th Cir. 1998).
      COA GRANTED; IFP GRANTED; JUDGMENT VACATED; CASE
REMANDED.




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