Franklin v. Dretke

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 25, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40444
Summary Calendar
WALTER EARL FRANKLIN,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-CV-578-WMS-HWM
--------------------
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Walter Earl Franklin, Texas prisoner #1002429, requests a
certificate of appealability (“COA”) to appeal the district
court’s denial of his 28 U.S.C. § 2254 petition as untimely under
§ 2244(d). See § 2253(c)(1)(A). Because the district court
failed to toll the limitations period on December 25, 2003,
Christmas Day, and on December 26, 2003, when the clerk’s office
for the Eastern District of Texas was officially closed, jurists

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No. 04-40444
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of reason would find that the district court should not have
dismissed Franklin’s habeas petition as time-barred.
See FED. R. CIV. P. 6(a); Slack v. McDaniel, 529 U.S. 473, 484
(2000). A COA is hereby GRANTED. The district court’s judgment
denying habeas relief on the basis of the time-bar of 28 U.S.C.
§ 2244(d) is hereby VACATED, and this case is REMANDED to the
district court for consideration of the constitutional claims set
forth in Franklin’s habeas petition.
VACATED and REMANDED.

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