Richard Tharpe, Jr. v. Rick Thaler, Director

Filing

PUBLISHED OPINION FILED. [09-10632 Affirmed ] Judge: JLW , Judge: EMG , Judge: ECP Mandate pull date is 01/13/2011 [09-10632]

Richard Tharpe, Jr. v. ase:Thaler, Director C Rick 09-10632 Document: 00511331281

Page: 1 Date Filed: 12/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 23, 2010 N o . 09-10632 Lyle W. Cayce Clerk

R I C H A R D THEODORE THARPE, JR., 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 Institution 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 WIENER, GARZA, and PRADO, Circuit Judges. W I E N E R , Circuit Judge: P e t itio n e r -A p p e lla n t Richard Theodore Tharpe, Jr. pleaded guilty in state c o u r t to the felony offense of possession with intent to distribute cocaine. The t r ia l court accepted his guilty plea, but instead of convicting Tharpe and im p o s in g incarceration, the court deferred adjudicating his guilt and placed him o n deferred-adjudication probation. After he violated his probation, however, the t r ia l court convicted Tharpe and sentenced him to twenty-five years in prison. A fte r exhausting his state court remedies, Tharpe filed this federal habeas corp u s application, asserting claims related to both his deferred adjudication and h is conviction and sentence.

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Case: 09-10632 Document: 00511331281 Page: 2 Date Filed: 12/23/2010

No. 09-10632 T h e district court dismissed Tharpe's deferred-adjudication claims as timeb a r r e d , applying our holding in Caldwell v. Dretke1 that the one-year statute of lim it a t io n s of the Antiterrorism and Effective Death Penalty Act of 1996 (A E D P A ) for bringing claims related to his deferred adjudication started to run w h e n the state court's deferred-adjudication order became final. We granted T h a r p e a certificate of appealability (COA) on the question whether, in light of t h e Supreme Court's holding in Burton v. Stewart, the district court correctly d is m is s e d his deferred-adjudication claims as untimely.2 We hold that, under the d i s c r e t e circumstances of this case, our analysis in Caldwell is not affected by B u r to n , so we affirm the district court's dismissal of Tharpe's deferreda d ju d ic a t io n claims as untimely. I . FACTS & PROCEEDINGS A . Facts T h a r p e pleaded guilty in state court to the felony offense of possession w it h intent to distribute cocaine. On June 26, 2006, the trial court accepted T h a r p e 's guilty plea, but did not adjudicate his guilt or sentence him, instead p la c in g him on deferred-adjudication probation. Tharpe wrote a letter to the c o u r t suggesting that he wanted to appeal the deferred-adjudication order. The t r ia l court treated Tharpe's letter as a notice of appeal and submitted it to the s t a t e court of appeals. That court dismissed the appeal on January 11, 2007, c o n c lu d in g that Tharpe had waived his right to appeal and that the appeal was u n t im e ly as well.3

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429 F.3d 521 (5th Cir. 2005). 549 U.S. 147 (2007) (per curiam).

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See Tharpe v. State, No. 02-06-413-CR, 2007 WL 80015, at *1 (Tex. App.--Fort Worth Jan. 11, 2007, no pet.) (per curiam) (unpublished).

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No. 09-10632 A fte r the trial court ordered Tharpe's deferred adjudication, but before the a p p e lla te court dismissed his appeal, the State petitioned the trial court for an a d j u d ic a t io n of guilt based on a violation of probation. In December 2006, the t r ia l court held an adjudication hearing at which it determined that Tharpe had v io la t e d the conditions of his probation. That court then convicted Tharpe of the u n d e r ly in g drug offense and, on January 10, 2007, sentenced him to twenty-five y e a r s in prison. That same day, Tharpe filed a notice of appeal of that conviction a n d sentence. The judgment was affirmed on direct appeal,4 and the Texas Court o f Criminal Appeals refused discretionary review on January 16, 2008. O n January 31, 2008, Tharpe challenged both his deferred-adjudication a n d adjudication-of-guilt proceedings in a state post-conviction petition. On May 2 1 , 2008, the Texas Court of Criminal Appeals denied those challenges without w r it t e n order. B . Proceedings T h a r p e filed this federal habeas corpus application on June 2, 2008 p u r s u a n t to the AEDPA. He asserted nine claims, seven related to the deferreda d ju d ic a t io n order and two related to his subsequent conviction and sentence. T h e district court applied our holding in Caldwell and dismissed the seven d e fe r r e d -a d ju d ic a t io n claims as untimely under the AEDPA because more than o n e year had passed between the deferred-adjudication order becoming final and t h e filing of his federal petition,5 even after taking into account the time tolled fo r state post-conviction proceedings.6 The district court determined that the two

See Tharpe v. State, No. 02-07-016-CR, 2007 WL 2563989, at *2 (Tex. App.--Fort Worth, Sep. 6, 2007, pet. ref'd) (per curiam) (unpublished).
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See 28 U.S.C. § 2244(d)(1).

Because the AEDPA tolls the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending," 28 U.S.C. § 2244(d)(2), Tharpe's statute of limitations was tolled for the 111 days that his state post-conviction petition was pending between January 31 and May 21, 2008.

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No. 09-10632 c la im s which addressed Tharpe's conviction and sentence were timely, but d e n ie d them on the merits.7 W e granted a COA to determine whether, in light of the Supreme Court's h o ld in g in Burton, the district court correctly relied on Caldwell in dismissing t h e deferred-adjudication claims. I I . ANALYSIS A . Standard of Review T h e district court ruled as a matter of law that Tharpe's deferreda d ju d ic a t io n claims were time-barred, relying on our holding in Caldwell that fin a l deferred-adjudication orders trigger the AEDPA's statute of limitations. We r e v ie w questions of law de novo.8 B . Deferred-Adjudication Orders Under Caldwell v. Dretke U n d e r Texas law, a judge may defer the adjudication of guilt of particular d e fe n d a n t s and place them on "community supervision" if they plead guilty or n o lo contendere.9 If such a defendant wishes to raise issues related to his guilty p le a or deferred adjudication, he must do so on direct appeal from the deferreda d ju d ic a t io n order immediately after it is imposed; he may not wait until after h e violates the terms of his probation and is held guilty.1 0 If the defendant does n o t appeal at the time of deferred adjudication and thereafter violates a c o n d i t i o n of his community supervision, however, the court holds a hearing to d e t e r m in e whether it should then proceed to impose a judgment of guilt. If the t r ia l court holds such a hearing and convicts the defendant, it also sentences

See Tharpe v. Quarterman, No. 4:08-CV-366-A, 2009 WL 1505195, at *4-5 (N.D. Tex. May 27, 2009).
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See Bostick v. Quarterman, 580 F.3d 303, 306 (5th Cir. 2009). See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a). See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).

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No. 09-10632 h im .1 1 Under these circumstances, "all proceedings, including assessment of p u n is h m e n t , pronouncement of sentence, granting of community supervision, a n d defendant's appeal continue as if the adjudication of guilt had not been d e fe r r e d ." 1 2 I n Caldwell, we held that the AEDPA's statute of limitations starts to run fo r deferred-adjudication habeas claims when the deferred-adjudication order b e c o m e s final.1 3 The AEDPA's statute of limitations, 28 U.S.C. § 2244(d)(1), p r o v id e s that "[a] 1-year period of limitation shall apply to an application for a w r it of habeas corpus by a person in custody pursuant to the judgment of a State c o u r t"1 4 and that it runs from "the date on which the judgment became final by t h e conclusion of direct review or the expiration of the time for seeking such r e v ie w ."1 5 We concluded that "[t]he plain language of AEDPA, as well as its u n d e r ly i n g purpose" require that we treat a deferred-adjudication order as a " ju d g m e n t " under this provision as well as under 28 U.S.C. § 2254(a), which c o n fe r s habeas jurisdiction on federal courts for state prisoners only if they are " in custody pursuant to the judgment of a State court." 1 6 I n the end, we held that, for a Texas prisoner who is subject to a deferreda d ju d ic a t io n order, the statute of limitations for a federal habeas application r a is in g claims that address his deferred adjudication begins to run when his

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See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b). Id.

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See 429 F.3d at 530 & n.24. The case involved three petitioners, two of whom had pleaded guilty and were on deferred-adjudication probation and one of whom had pleaded not guilty but was convicted by a jury and placed on community supervision. See id. at 523-25. We only address the holding as it pertains to deferred-adjudication probation.
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28 U.S.C. § 2244(d)(1) (emphasis added). Id. § 2244(d)(1)(A) (emphases added). Caldwell, 429 F.3d at 527; 28 U.S.C. § 2254(a) (emphasis added).

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No. 09-10632 d e fe r r e d -a d ju d ic a t io n order becomes final, whether or not he is later convicted a n d sentenced.1 7 The Supreme Court denied certiorari, with Justice Stevens " r e s p e c t in g " the denial because "the Court of Appeals expressly limited its h o ld in g to instances where a petitioner brings an untimely challenge to s u b s t a n t iv e issues relating to an original order of deferred adjudication p r o b a t io n ." 1 8 C . Burton v. Stewart's Consideration of "Final Judgments" S u b s e q u e n t to our holding in Caldwell, the Supreme Court in Burton had o c c a s io n to address the definition of "judgment" for purposes of § 2244. The p e t it io n e r in Burton had received two amended judgments because of r e s e n t e n c in g issues. Thus, at successive times he was in custody pursuant to a 1 9 9 4 judgment, then pursuant to a 1996 judgment, and then pursuant to a 1998 ju d g m e n t .1 9 In December 1998, the petitioner filed his first federal habeas a p p lic a t io n challenging aspects of his conviction that remained the same for all t h r e e judgments. That filing came after his 1998 judgment had been entered but b e fo r e it became final. Then, after the 1998 judgment became final, the p e t it io n e r filed a second federal habeas application challenging his 1998 s e n te n c e . The Court had to determine, therefore, whether the petitioner's second h a b e a s application, which challenged his sentence as part of the 1998 judgment, s h o u ld be considered "second or successive" under the AEDPA in light of his first p e t it io n 's challenge to his original conviction. The Burton petitioner insisted that the 1994 judgment, which he thought h e was challenging in his first habeas application, had to be considered a

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See Caldwell, 429 F.3d at 530.

Caldwell v. Quarterman, 549 U.S. 970, 970 (2006) (Stevens, J., respecting the denial of the petition for writ of certiorari) (internal quotation marks omitted).
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Burton, 549 U.S. at 149-52.

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No. 09-10632 d iffe r e n t "judgment" from the 1998 judgment; otherwise, he argued, the A E D P A 's statute of limitations would have barred him forever from challenging t h e 1994 conviction in federal court. The Supreme Court disagreed: F in a l judgment in a criminal case means sentence. The sentence is t h e judgment. Accordingly, [petitioner's] limitations period did not b e g in until both his conviction and sentence became final by the c o n c lu s io n of direct review or the expiration of the time for seeking s u c h review--which occurred well after [petitioner] filed his 1998 p e t it io n .2 0 T h e Court went on to explain that when the petitioner filed his first habeas a p p lic a t io n , he was in custody pursuant to the 1998 "judgment of a State court," w h ic h gave the district court habeas jurisdiction under § 2254, "even if, at that p o in t, the 1998 judgment was not final for purposes of triggering the AEDPA's s t a t u t e of limitations."2 1 Therefore, held the Court, the petitioner's second h a b e a s application, which attacked the same judgment, was successive and thus w a s barred by the AEDPA.2 2 D . Caldwell's Holding in Light of Burton T h e Supreme Court in Burton putatively called the analysis of Caldwell in t o question by emphasizing that, for purposes of the AEDPA, the term " ju d g m e n t " includes both the conviction and the sentence. This arguably blocks o u r deeming a deferred-adjudication order to be a "judgment." Because Burton only addressed claims relating to a conviction and s e n te n c e , however, its analysis is logically limited to such claims. The Burton

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Id. at 156-57 (quotation marks omitted and emphases in original). Id. at 157 (emphasis added).

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See id. ("Burton neither sought nor received authorization from the Court of Appeals before filing his 2002 petition, a `second or successive' petition challenging his custody, and so the District Court was without jurisdiction to entertain it."). See also 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.").

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No. 09-10632 C o u r t was asked specifically whether a habeas claim that challenges a conviction a n d another habeas claim that challenges a sentence involve two different " ju d g m e n t s " for AEDPA purposes. The Court answered "no." In contrast, the q u e s t io n we are asked in the instant case is whether a habeas claim that c h a l l e n g e s a deferred-adjudication order and another habeas claim that c h a ll e n g e s a conviction and sentence involve two different "judgments" for A E D P A purposes. Ours is an entirely different question, to which--consistent w it h our holding in Caldwell--we answer "yes." It follows, then, that in dealing w it h two entirely separate and distinct judgments--one a deferred-adjudication o r d e r and the other a judgment of conviction and sentence--we are dealing with t w o separate and distinct limitation periods under the AEDPA. A fte r the state trial court entered Tharpe's deferred-adjudication order on J u n e 26, 2006, he was in custody pursuant to a state judgment--viz. that d e fe r r e d -a d ju d ic a t io n order--triggering our federal habeas jurisdiction under § 2254. Then, when the appeal of his deferred-adjudication order was dismissed b y the State's highest court on January 11, 2007, that order, i.e., that judgment, b e c a m e final, triggering the AEDPA's one-year limitations period within which T h a r p e could challenge his deferred-adjudication order. With the inclusion of the t im e tolled for exhaustion of state remedies, Tharpe theoretically had until J a n u a r y 11, 2008 to file a federal habeas application challenging the June 26, 2 0 0 6 deferred-adjudication order. Thus, when--on January 31, 2008--Tharpe f i r s t began his efforts to exhaust state habeas remedies on his deferreda d ju d ic a t io n claims, his one-year federal limitations period had already run. C o n s e q u e n t l y , those claims were appropriately found to be time-barred by the d is t r ic t court following the filing of Tharpe's federal habeas application on June 2 , 2008; and we so hold. M o r e o v e r , our holding here is wholly reconcilable with Burton. Inasmuch a s Tharpe's deferred-adjudication order was a separate judgment from his 8

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No. 09-10632 s u b s e q u e n t judgment of conviction and sentence, that subsequent judgment also c o n s t it u t e d a "final judgment" per Burton and was thus unaffected, for purposes o f the AEDPA's statute of limitations, by the earlier finality of his deferreda d ju d ic a t io n order. Like the petitioner in Burton, who was in custody--first p u r s u a n t to his 1994 judgment, then pursuant to his 1996 judgment, and then p u r s u a n t to his 1998 judgment--Tharpe was in custody first pursuant to the d eferred -a d ju d icatio n order and then pursuant to his January 10, 2007 judgment o f conviction and sentence.2 3 Therefore, Tharpe's habeas claims challenging the d e fe r r e d -a d ju d ic a t io n order were untimely because the AEDPA's statute of lim it a t io n s had already run for those claims.2 4 I I I . CONCLUSION F o r the foregoing reasons, the district court's denial of Tharpe's seven d e fe r r e d -a d ju d ic a t io n claims as time-barred is AFFIRMED.

Because Tharpe's deferred-adjudication order and his judgment of conviction and sentence were two separate and distinct "judgments," the AEDPA's time bar on the earlier order had no effect on the later judgment, which is why the district court was correct in addressing the merits of Tharpe's habeas claims regarding the later "final judgment" and not dismissing them as time-barred. Although not essential to our determination that Tharpe's deferred-adjudication claims were time-barred, Tharpe's claims were also flawed because they were filed when he was no longer in custody pursuant to the deferred-adjudication order.
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