Jason Matthis v. Burl Cain, Warden

Filing

PUBLISHED OPINION FILED. [09-30576 Affirmed ] Judge: JLW , Judge: EMG , Judge: ECP Mandate pull date is 01/03/2011 [09-30576]

Jason Matthis v. Burl Cain,: Warden Case 09-30576

Document: 00511318853 Page: 1 Date Filed: 12/13/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 13, 2010 N o . 09-30576 Lyle W. Cayce Clerk

J A S O N MATTHIS P e titio n e r­ A p p e lla n t v. B U R L CAIN, WARDEN, LOUISIANA STATE PENITENTIARY 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 Eastern District of Louisiana

B e fo r e WIENER, GARZA, and PRADO, Circuit Judges. P R A D O , Circuit Judge: J a s o n Matthis ("Appellant") appeals the district court's dismissal of his h a b e a s corpus petition brought pursuant to 28 U.S.C. § 2254 as untimely. The d i s t r ic t court found that Appellant's petition was time-barred by 28 U.S.C. § 2244(d)(1). The court held that Appellant exceeded the limitations period b e c a u s e he filed his federal habeas petition more than one year after the date his s t a t e conviction became final by conclusion of direct review, notwithstanding t o llin g of the limitations period during the pendency of his state post-conviction r e v ie w pursuant to 28 U.S.C. § 2244(d)(2). Appellant contends that because the s t a t e district court vacated his conviction and granted him a new trial on post-

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Case: 09-30576 Document: 00511318853 Page: 2 Date Filed: 12/13/2010

No. 09-30576 c o n v ic t io n review, the finality of his conviction was destroyed for purposes of § 2244(d)(1). He argues that especially in light of the principles announced in J im e n e z v. Quarterman, 129 S.Ct. 681 (2009), his conviction was not final on d ir e c t review under 28 U.S.C. § 2244(d)(1)(A) until the Louisiana Supreme Court r e in s t a t e d his conviction and sentence. Because the overturning and

r e in s t a t e m e n t of Appellant's conviction occurred solely through post-conviction r e v ie w , we find that this did not affect the date his conviction became final under d ir e c t review and thus his federal habeas petition was untimely. We therefore a ffir m . I . FACTUAL AND PROCEDURAL HISTORY J a s o n Matthis was convicted of second-degree murder in Louisiana state c o u r t on September 22, 1999, and sentenced to life in prison. The Louisiana F o u r t h Circuit Court of Appeal affirmed, and the Louisiana Supreme Court d e n ie d Appellant's application for a writ of certiorari on November 9, 2001. On F e b r u a r y 8, 2002, after the ninety-day period for petition to the U.S. Supreme C o u r t expired, Appellant's conviction became final. On November 8, 2002, A p p e lla n t filed an application for state post-conviction relief. The state district c o u r t granted post-conviction relief and ordered a new trial on November 8, 2 0 0 6 . After the Louisiana appellate court declined to overturn the state district c o u r t, the Louisiana Supreme Court reversed the state district court's grant of p o s t -c o n v ic t io n relief and reinstated Appellant's conviction and sentence on N o v e m b e r 2, 2007. The Louisiana Supreme Court thereafter denied his petition fo r rehearing on January 7, 2008. A p p e lla n t filed his federal habeas petition on July 28, 2008. The district c o u r t dismissed his petition with prejudice as untimely on June 30, 2009, and d e n ie d a certificate of appealability ("COA") thereafter. After Appellant timely a p p e a le d , we granted a COA on the issue of whether Appellant's habeas petition w a s time-barred under 28 U.S.C. § 2244(d)(1). 2

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No. 09-30576 I I . DISCUSSION A p p e lla n t acknowledges that under "traditional analysis" his conviction b e c a m e final by the conclusion of direct review on February 8, 2002. Starting fr o m this date, 272 days elapsed before the limitations period was tolled by his filin g of a state post-conviction petition. After his state post-conviction review c o n c lu d e d , another 202 days elapsed before Appellant filed his federal habeas p e t it io n . Thus, 474 days had elapsed (excluding the tolling period), thereby e x c e e d in g the one-year limitations period. Appellant nonetheless claims that t h is Court should find his petition timely, because when the state district court v a c a t e d his conviction and ordered a new trial, he was no longer a "person in c u s t o d y pursuant to the judgment of a State court" under 28 U.S.C. § 2244(d)(1). Therefore, Appellant argues, the finality of the judgment was destroyed for the p u r p o s e s of § 2244(d)(1)(A), resetting the limitations period. Appellant asserts t h a t the limitations period did not begin until the Louisiana Supreme Court r e in s t a t e d his conviction. He further cites the Supreme Court's 2009 decision in J im e n e z as support for his contention that "a conviction cannot be final when the p e t it io n e r 's conviction is still capable of modification by appellate review by the S t a te courts." " W e review de novo the denial of a federal habeas petition on procedural g r o u n d s ." Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003). T h e Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") in c lu d e s a limitations period for the filing of a federal habeas petition "by a p e r s o n in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1); see Lawrence v. Florida, 549 U.S. 327 (2007). The statute provides t h a t the limitations period shall run from the latest of four possible dates, the r e le v a n t one here being "the date on which the judgment became final by the c o n c lu s io n of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). This provision works in conjunction with 28 U.S.C. § 3

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No. 09-30576 2 2 4 4 (d )(2 ), which provides for a tolling of the limitations period during the time in which "a properly filed application for State post-conviction or other collateral r e v ie w with respect to the pertinent judgment is pending." The Supreme Court h a s further held that "the conclusion of direct review occurs when `this Court a ffir m s a conviction on the merits on direct review or denies a petition for a writ o f certiorari,'" or when the "`the time for filing a certiorari petition expires.'" Jimenez, 129 S.Ct. at 685 (quoting Clay v. United States, 537 U.S. 522, 527, 5 2 8 ­ 3 2 (2003)). A lt h o u g h the question of whether the overturning and subsequent r e in s t a t e m e n t of a conviction on state post-conviction review destroys the fin a lity of a judgment for purposes of § 2244(d)(1)(A) is one of first impression in t h is Circuit,1 its answer is straightforward. The language of § 2244(d)(1)(A) p la in ly refers to the date on which the "judgment became final by the conclusion o f direct review or the expiration of time for seeking such review." 28 U.S.C. § 2 2 4 4 (d )(1 )(A ) (emphasis added). Guided by the maxim that "when the statutory la n g u a g e is plain, we must enforce it according to its terms," Jimenez, 129 S.Ct. a t 685, Appellant must therefore show that the state district court's overturning o f his conviction constituted a reinstatement of direct review. This he cannot do. As Appellant acknowledges in his brief, the state district court overturned his c o n v ic t io n on post-conviction review, not on direct review. The language of the s t a t u t e clearly distinguishes between the two phases of review, accounting for

This Court addressed a similar factual scenario in a previous unpublished summary calendar opinion; the issue in that case, however, was not whether the defendant's petition was timely, but whether the Court should equitably toll the statute of limitations for petitioner's otherwise untimely habeas petition. See LeBlanc v. Travis, 352 F. App'x 966 (5th Cir. 2009). Although the issue before the court was different, it did note that "[t]he decision of the Louisiana Supreme Court [reinstating petitioner's conviction after it was initially overturned on post-conviction review] cannot be considered a new charge that began a new finality date." Id. at 967.

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No. 09-30576 d ir e c t review under § 2244(d)(1)(A), and allowing for tolling during postc o n v ic t io n review under § 2244(d)(2). The reference of § 2244(d)(1) to "a person in custody pursuant to the ju d g m e n t of a State court" also does not change the result. When Appellant filed h is application for a writ of habeas corpus, he was in, and remains in, custody p u r s u a n t to the state court judgment. His period of release after the conviction w a s overturned on post-conviction review and before the conviction was r e in s t a t e d was accounted for by § 2244(d)(2); the limitations period was tolled d u r in g his release as well as the entirety of his post-conviction review in state c o u r t. T h e Supreme Court's decision in Jimenez also provides no support to A p p e lla n t 's argument. Jimenez dealt with the question of whether a state c o u r t's grant of an out-of-time appeal to reopen direct review of the petitioner's c o n v ic t io n destroyed the finality of the judgment on direct review under § 2244(d)(1)(A). See 129 S.Ct. at 686. The Court held that "where a state court g r a n t s . . . the right to file an out-of-time direct appeal during state collateral r e v ie w , but before the defendant has first sought federal habeas relief, his ju d g m e n t is not yet `final' for purposes of § 2244(d)(1)(A)." Id. (emphasis added). The Court further noted that its decision was "a narrow one." Id. Because it is u n c o n t e s t e d that, unlike in Jimenez, the state courts overturned and then r e in s t a t e d Matthis's conviction on post-conviction, and not direct review, J im e n e z is inapposite. T h e only other situation in which claims for post-conviction relief may p o t e n t ia lly implicate § 2244(d)(1)(A) is where the state uses a method of appeal b y which the direct appeal is stayed while the defendant institutes proceedings fo r post-conviction relief, and the direct and post-conviction appeals are c o n s o lid a t e d and decided together. See Nelson v. Hvass, 280 F.3d 872, 873­74 (8 t h Cir. 2002) (holding that where Minnesota court procedures require such a 5

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No. 09-30576 p r o c e s s and the state appellate court hears both the direct appeal and postc o n v i c t io n -r e lie f appeal together, direct review is not final until the combined a p p e a l is concluded). Louisiana does not require such a procedure, and here, A p p e lla n t 's direct review concluded before he instituted proceedings for postc o n v ic t io n relief. I I I . CONCLUSION W e therefore affirm the decision of the district court dismissing A p p e lla n t 's habeas application as untimely pursuant to § 2244(d)(1). A F F IR M E D .

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