Walter Beck v. Rick Thaler, Director

Filing

UNPUBLISHED OPINION FILED. [09-20512 Vacated and Remanded] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/05/2010 [09-20512]

Walter Beck v. Rick Thaler, Director

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Case: 09-20512

Document: 00511264747

Page: 1

Date Filed: 10/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20512 S u m m a r y Calendar October 15, 2010 Lyle W. Cayce Clerk

W A L T E R CLIFFORD BECK, P e titio n e r-A p p e lla n t v. R IC K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, C O R R E C T I O 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 ls from the United States District Court fo r the Southern District of Texas U S D C No. 4:08-CV-2963

B e fo r e WIENER, PRADO and OWEN, Circuit Judges. P E R CURIAM:* W a lt e r Clifford Beck, Texas prisoner # 1339487, appeals the dismissal of h is 28 U.S.C. § 2254 habeas corpus petition as time barred. Beck's § 2254 p e t it io n challenged his aggravated robbery conviction, for which he was s e n te n c e d 65 years of imprisonment. U n d e r § 2244(d)(1), a one-year period of limitation applies to § 2254 p e t it io n s . The limitation period does not begin to run until, at the earliest, "the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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d a t e on which the judgment became final by the conclusion of direct review or t h e expiration of the time for seeking such review." § 2244(d)(1)(A). The

lim it a t io n s period is tolled during the pendency of a properly filed state habeas a p p lic a tio n . § 2244(d)(2). Direct review is generally concluded when the

S u p r e m e Court either rejects a petition for certiorari, rules on its merits, or by t h e expiration of the 90 days allowed for a petition of certiorari to the Supreme C o u r t following the entry of judgment by the state court of last resort. Roberts v . Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). However, "[i]f the defendant stops t h e appeal process before that point, the conviction becomes final when the time fo r seeking further direct review in the state court expires." Id. I n this case, the district court found that Beck terminated the appeal p r o c e s s by missing an extended deadline for filing his petition for discretionary r e v ie w (PDR). We granted Beck a COA solely as to whether the district court e r r e d in finding that his PDR was untimely and dismissing his § 2254 petition a s time barred. Beck argues that he did not miss the PDR deadline because Texas applies a "mailbox rule" to PDRs. If Beck is correct, then he timely filed his § 2254 p e t it io n less than a year after the expiration of the 90 days allowed for a c e r t io r a r i petition. See Roberts, 319 F.3d at 694. The respondent agrees with B e c k and asserts that the TCCA accepted Beck's PDR as timely under Texas R u le of Appellate Procedure 9.2(b). In addition, the respondent supplemented t h e record with relevant state court papers by permission of this court. W h ile a district court may raise the AEDPA time bar sua sponte in § 2254 p r o c e e d in g s, Day v. McDonough, 547 U.S. 198, 209 (2006), "information essential t o the [AEDPA] time calculation is often absent . . . until the State has filed, a lo n g with its answer, copies of documents from the state-court proceedings." Id. at 207 n.6. In this case, because the respondent was not served prior to d is m is s a l of the action, the district court did not have the benefit of the pertinent s t a t e court records which are now before this court and which would have aided 2

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t h e district court's decisional process. Furthermore, the respondent's argument in this court, that Beck's § 2254 petition was timely, could be construed as a d e lib e r a t e waiver of the statute-of-limitations defense. See Day, 547 U.S. at 202 (" [W ]e would count it an abuse of discretion to override a State's deliberate w a iv e r of a limitations defense . . . ."). In light of the respondent's position on appeal regarding the time bar and t h e information contained in the record as supplemented on appeal, the order of t h e district court dismissing Beck's § 2254 petition as untimely is VACATED, a n d the case is REMANDED to the district court for further proceedings c o n s is t e n t with this opinion.

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