Rafael Gonzalez v. Rick Thaler, Director

Filing

PUBLISHED OPINION FILED. [08-10871 Affirmed] Judge: PEH , Judge: EBC , Judge: PRO. Mandate pull date is 10/27/2010 [08-10871]

Rafael Gonzalez v. Rick Thaler, Director

Doc. 0

Case: 08-10871

Document: 00511255035

Page: 1

Date Filed: 10/06/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 6, 2010 N o . 08-10871 Lyle W. Cayce Clerk

R A F A E L ARRIAZA GONZALEZ, P e titio n e r-A p p e lla n t v. R I C K THALER, Director, Texas Department of Criminal Justice, C o r r e c t io n a l Institutions Division, R e s p o n d e n t -A p p e lle e

A p p e a l from the United States District Court for the Northern District of Texas

B e fo r e HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges. E D I T H BROWN CLEMENT, Circuit Judge: P etitio n e r -a p p e lla n t Rafael Gonzalez appeals the district court's dismissal o f his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The d is t r i c t court held that Gonzalez's petition was time-barred under 28 U.S.C. § 2244(d)(1) because he failed to file his petition within one year of the expiration o f his time to appeal his intermediate state appellate court judgment to the T e x a s Court of Criminal Appeals. We affirm. F A C T S AND PROCEEDINGS O n July 14, 2005, Gonzalez was convicted of murder and sentenced to t h ir t y years in prison. Gonzalez appealed his conviction to the Texas Court of

Dockets.Justia.com

Case: 08-10871

Document: 00511255035

Page: 2

Date Filed: 10/06/2010

No. 08-10871 A p p e a ls , which affirmed his conviction on July 12, 2006. See Gonzales v. State, N o . 05-05-01140-CR, 2006 WL 1900888 (Tex. App. July 12, 2006). Gonzalez did n o t file a petition for discretionary review to the Texas Court of Criminal A p p e a ls within the thirty days allowed by the Texas Appellate Rules. See TEX. R . APP. P. 68.2(a). Gonzalez's period for discretionary review expired on August 1 1 , 2006. On September 26, 2006, the mandate was issued in his case. O n February 8, 2007, Gonzalez filed for a writ of habeas corpus in the T e x a s Court of Criminal Appeals, which dismissed his application on April 11, 2 0 0 7 , for failure to comply with the Texas Appellate Rules. On July 19, 2007, G o n z a le z filed for a second state writ of habeas corpus, which was denied on N o v e m b e r 21, 2007. O n January 24, 2008, Gonzalez filed a petition for a writ of habeas corpus in the district court under 28 U.S.C. § 2254. A magistrate judge recommended t h a t the district court dismiss Gonzalez's petition as time-barred because he had fa ile d to comply with the one-year statute of limitations under the Antiterrorism a n d Effective Death Penalty Act of 1996 (AEDPA). Citing to this court's decision in Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003), the magistrate judge c a lc u la t e d Gonzalez's one-year period beginning from the date Gonzalez could n o longer petition for discretionary review to the Texas Court of Criminal A p p e a ls , August 11, 2006. Gonzalez objected to the magistrate judge's report a n d recommendation, arguing that the magistrate judge should have calculated t h e one-year period from that the date the mandate was issued instead of the d a t e his right to petition for discretionary review expired. The district court o v e r r u le d Gonzalez's objections, adopted the magistrate's recommendations, and d is m is s e d Gonzalez's petition as time-barred. Gonzalez appealed, and we granted a certificate of appealability (COA) on t h e question of "whether Roberts has been overruled by Lawrence [v. Florida, 5 4 9 U.S. 327, 331-35 (2007)] and, if so, whether [Gonzalez's] habeas application 2

Case: 08-10871

Document: 00511255035

Page: 3

Date Filed: 10/06/2010

No. 08-10871 w a s timely filed." 1 S T A N D A R D OF REVIEW AND APPLICABLE LAW W e review the denial of a federal habeas petition on procedural grounds d e novo. Roberts, 319 F.3d at 693. D IS C U S S IO N U n d e r the AEDPA, Gonzalez had one year to timely file his petition, b e g in n in g on "the date on which the judgment became final by the conclusion of d ir e c t review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A) (2010). Gonzalez's appeal centers on when his conviction became " fin a l" and triggered his limitations period. I n Roberts, we held that the issuance of a mandate by a state court is ir r e le v a n t to determining when a judgment becomes "final" for the purposes of § 2244(d)(1)(A). Roberts, 319 F.3d at 694-95. Instead, because a conviction b e c o m e s final "by the conclusion of direct review or the expiration of the time for s e e k in g such review," the one-year limitations period for a petitioner that does n o t appeal to the state court of last resort begins "when the time for seeking fu r t h e r direct review in the state court expires." § 2244(d)(1)(A)). G o n z a le z 's "time for seeking further direct review in the state court" e x p ir e d on August 11, 2006, the last date under the Texas Appellate Rules that h e could petition for discretionary review of his judgment. Id.; see TEX. R. APP. P . 68.2(a). Under Roberts, Gonzalez's AEDPA limitations period therefore began o n August 12, 2006, the day after his conviction become final. See Flanagan v. Id. at 694 (quoting

Gonzalez also argues that: (1) his right to a speedy trial was violated; (2) his trial counsel was ineffective; (3) the trial court admitted tainted evidence and faulty witness statements into evidence; and (4) the state violated his due process rights by refusing to give him copies of the clerk's and reporter's records. Because COAs were not granted on these issues, we lack jurisdiction to consider these claims. Carty v. Thaler, 583 F.3d 244, 266 (5th Cir. 2009); 28 U.S.C. § 2253(c).

1

3

Case: 08-10871

Document: 00511255035

Page: 4

Date Filed: 10/06/2010

No. 08-10871 J o h n s o n , 154 F.3d 196, 202 (5th Cir. 1998) (applying FED. R. CIV. P. 6(a) to A E D P A calculation). T h r e e hundred forty-two days of the limitations period elapsed before G o n z a le z filed his second state habeas petition.2 Because "[t]he time during w h ic h a properly filed application for State post-conviction . . . review with r e s p e c t to the pertinent judgment . . . is pending shall not be counted toward any p e r io d of limitation," the limitations period was tolled for the 125 days between J u ly 20 and November 21, 2007. 28 U.S.C. § 2244(d)(2). The one-year

lim it a t io n s period resumed running on November 22, 2007, and under Roberts, e x p ir e d on December 17, 2007. Gonzalez filed his federal habeas petition on J a n u a r y 24, 2008. Applying the undisputed facts to the current circuit rule, G o n z a le z 's federal habeas petition was time-barred by the AEDPA's one-year lim it a t io n s period. G o n z a le z argues the Supreme Court overruled Roberts in Lawrence and t h u s his conviction became "final" for the purposes of § 2244(d)(1)(A) when the s t a t e appellate court issued its mandate on September 26, 2006. Excluding the s a m e 125 days for the properly filed state habeas petition, Gonzalez's one-year lim it a t io n s period would therefore extend to January 30, 2008, and his federal h a b e a s petition would not be time-barred by the AEDPA. I n Lawrence, the issue before the Court was "whether the [AEDPA] lim it a t io n s period was . . . tolled [under § 2244(d)(2)] during the pendency of L a w r e n c e 's petition for certiorari to [the Supreme] Court seeking review of the d e n ia l of state postconviction relief." 549 U.S. at 331. The Court held that the s t a t u t e of limitations was only tolled while the state courts reviewed the

Gonzalez's first state habeas petition did not toll the limitations period because it was not "properly filed" as required by the Texas Appellate Rules and, by extension, § 2244(d)(2). See Artuz v. Bennet, 531 U.S. 4, 8 (2000) (holding that an application is "properly filed" under when "its delivery and acceptance are in compliance with the applicable laws and rules governing filings").

2

4

Case: 08-10871

Document: 00511255035

Page: 5

Date Filed: 10/06/2010

No. 08-10871 a p p lic a t io n because, "[a]fter the State's highest court has issued its mandate or d e n ie d review, no other state avenues for relief remain open," and the petition w a s therefore not "State post-conviction or other collateral review" required by § 2244(d)(2). Id. at 332 (emphasis in original). W e hold that the Supreme Court did not overrule Roberts in Lawrence. First, and most importantly, the Court was interpreting the AEDPA's tolling p r o v is io n , § 2244(d)(2), not its triggering provision, § 2244(d)(1), in Lawrence. Id. at 332. Furthermore, although the Court references the "State court's

m a n d a t e " in Lawrence, the references were to the State court's mandate denying t h e prisoner's state post-conviction habeas petition, not the mandate affirming h is original conviction. Id. at 330-32. It is unlikely that the Court intended to im p lic it ly hold that a state conviction is "final" under § 2244(d)(1) when the m a n d a t e issues while discussing the finality of a state habeas claim in the c o n t e x t of a different statutory component of the AEDPA. A d d it io n a lly , we believe that Lawrence did not overrule Roberts because t h e resulting interpretation would be contrary to the plain language of the s t a t u t e . Under the AEDPA, the limitations period can begin on "the date on w h ic h the judgment became final by the conclusion of direct review or the e x p ir a t io n of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). For p e t it io n e r s such as Gonzalez who do not exhaust their state court rights, the " e x p ir a t io n of the time for seeking [direct] review" is clearly when the petitioner c a n no longer timely file for further state court review, not when the mandate is s u e s . The Supreme Court recently reached a similar conclusion in Jimenez v. Q u a r te r m a n , concluding that state judgments were "final" under § 2244(d)(1) w h e n the time for filing a petition for certiorari expires because that " c o m p o r t [e d ] with the most natural reading of the statutory text." 129 S. Ct. 681, 6 8 5 (2009). Notably, the Court did not mention the state court's issuance of the

5

Case: 08-10871

Document: 00511255035

Page: 6

Date Filed: 10/06/2010

No. 08-10871 m a n d a t e after the time for filing a petition for certiorari expires.3 T h e Eighth Circuit has recently relied on Lawrence to support its c o n c l u s io n that a conviction becomes final for the purposes of § 2244(d)(1)(A) w h e n the state court issues its mandate. Riddle v. Kemna, 523 F.3d 850, 855-56 (8 t h Cir. 2008) (en banc). Riddle is unpersuasive for two reasons. First, the E ig h t h Circuit cited Lawrence to support Payne v. Kemna, a prior Eighth Circuit d e c is io n where it held that the state court mandate triggers the AEDPA statute o f limitations. See Payne v. Kemna, 441 F.3d 570, 572 (8th Cir. 2006). Payne b a s e d its holding primarily on Missouri state court decisions holding that an a p p e a l is not final until the mandate has issued. Id. (citing Williams v. Blumer, 7 6 3 S.W.2d 242, 245 (Mo. Ct. App. 1988)). But the Supreme Court has held that t h e phrase "`by the conclusion of direct review or the expiration of the time for s e e k in g such review' make[s] it clear that finality for the purpose of § 2244(d)(1)(A) is to be determined by reference to a uniform federal rule." Clay v . United States, 537 U.S. 522, 531 (2003). The Eighth Circuit's holdings in P a y n e and Kemna violate this principle by relying on state court definitions to d e t e r m in e finality under § 2244(d)(1). Second, the court in Riddle failed to a n a ly z e the Court's holding in Lawrence, limiting its discussion to a p a r e n t h e t ic a l statement that the "Court refer[red] five times to the issuance of t h e mandate by state court as the `final judgment.'" Riddle, 523 F.3d at 856. " [F ]o r a panel of this court to overrule a prior decision, we have required a Supreme Court decision that . . . establishes a rule of law inconsistent with our o w n ." Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1103 (5th Cir. 1997) (o v e r r u le d in part on other grounds by Okpalobi v. Foster, 224 F.3d 405 (5th Cir.
Gonzalez's theory would also result in different definitions of when a conviction was final depending on what point a petitioner ends direct review. Under his theory, the issuance of the mandate would begin his one-year limitations period if he failed to appeal to the Texas Court of Appeals or the Texas Court of Criminal Appeals. But, if he failed to appeal to the United States Supreme Court, the end of the period for filing a petition for certiorari would begin his one-year limitations period. Jimenez, 129 S. Ct. at 685.
3

6

Case: 08-10871

Document: 00511255035

Page: 7

Date Filed: 10/06/2010

No. 08-10871 2 0 0 1 ) ) . Because the Court's decision in Lawrence is not inconsistent with our p r io r decision in Roberts, we hold that Roberts remains good law in this circuit. Under the AEDPA, a state conviction for a petitioner who does not appeal to the s t a t e court of last resort becomes final "when the time for seeking further direct r e v ie w in the state court expires," not when the mandate issues in his case. Roberts, 319 F.3d at 695. Gonzalez's habeas petition is barred by the AEDPA's o n e -y e a r statute of limitations. C O N C L U S IO N F o r the above reasons, the judgment of the district court is AFFIRMED.

7