Flanagan v. Johnson

REVISED, October 13, 1998

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 97-10912

JAMES C. FLANAGAN,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
For the Northern District of Texas
September 1, 1998

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Texas state prisoner James C. Flanagan appeals the district

court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as

time-barred by the one year period of limitation in the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214 (1996) ("AEDPA"). We reverse and remand

for further proceedings consistent with this opinion.

I.

James C. Flanagan was convicted by a Texas state jury of
aggravated possession of more than 400 grams of cocaine in January

1989. The trial court sentenced Flanagan to ninety years

imprisonment and imposed a $100,000 fine. Flanagan’s conviction

was affirmed on direct appeal. On November 21, 1990, the Texas

Court of Criminal Appeals refused Flanagan’s petition for

discretionary review. Flanagan did not file a petition for writ of

certiorari to the United States Supreme Court. Hence, Flanagan’s

conviction became final on or about February 19, 1991, ninety days

after judgment was entered. Caspari v. Bohlen, 114 S. Ct. 948, 953

(1994); see also Motley v. Collins, 18 F.3d 1223, 1225 (5th Cir.

1994). Flanagan filed one state petition for habeas corpus, which

was denied without written order on May 12, 1993.

Flanagan filed this § 2254 petition for federal habeas corpus

relief on April 24, 1997. He claims that his conviction was

obtained without due process because he was called to testify on

his own behalf without being informed of his constitutional right

not to testify. See Jones v. Barnes, 103 S. Ct. 3308, 3312 (1983);

Malloy v. Hogan, 84 S. Ct. 1489, 1493-94 (1964). The state filed

a motion to dismiss Flanagan’s petition as time-barred by the one

year period of limitation in 28 U.S.C. § 2244(d). The district

court referred the matter to a magistrate judge, who recommended

that the petition be dismissed. Flanagan filed objections to the

magistrate judge’s report. The district court conducted a de novo

review, and then dismissed Flanagan’s § 2254 petition as time-

barred.

Flanagan filed a timely notice of appeal. Flanagan also moved

2
for a certificate of appealability (COA) in the district court,

which was denied. Flanagan then sought a COA in this Court, which

was granted as to the limited issue of whether Flanagan’s petition

was time-barred.

II.

Flanagan filed this § 2254 action after AEDPA’s April 24, 1996

effective date. His claim is therefore governed by the provisions

of that statute. Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997).

AEDPA provides in pertinent part:

(d)(1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a
State court. The limitation period shall run from
the latest of--

(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;

(B) the date on which the impediment to filing
an application created by State action in violation
of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;

(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable
to cases on collateral review; or

(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due diligence.

(2) The time during which a properly filed
application for State post-conviction of other
collateral review with respect to the pertinent

3
 judgment or claim is pending shall not be counted
toward any period of limitation under this
subsection.

28 U.S.C. § 2244(d).

AEDPA severely constricts the time period allowed for filing

a federal habeas corpus action. Section 2244(d)(1)(A) sets forth

the general rule that a federal habeas petition must be filed

within one year after the petitioner’s conviction becomes final.

Section 2244(d)(2) provides that the time period during which a

properly filed state habeas application is pending shall not be

counted against the one year period. Section 2244(d)(1) sets up

statutory exceptions which can, in appropriate cases, extend the

time for filing a federal habeas petition beyond the one year

period after final conviction if the state imposes an

unconstitutional impediment to the filing of a federal habeas

petition, if the Supreme Court recognizes a new constitutional

right that is given retroactive effect, or if the petitioner is

unable through the exercise of due diligence to discover the

factual predicate of the petitioner’s federal habeas claim. 28

U.S.C. § 2244(d)(1)(B), (C) and (D). Prior to AEDPA, there was no

specific period of limitation governing federal habeas corpus

petitions, aside from the laches-like standard contained in Rule

9(a) of the Rules Governing Section 2254 Cases in the United States

District Courts. See Lonchar v. Thomas, 116 S. Ct. 1293, 1300-01

(1996); see also Brown v. Angelone, No. 96-7173, 1998 WL 389030 at

*1-2 (4th Cir. July 14, 1998). Under that standard, a “prisoner

4
could wait almost a decade to file his habeas petition without

violating Rule 9(a).” Angelone, 1998 WL 389030 at *2 (citing

Lochnar, 116 S. Ct. at 1300-01).

III.

Flanagan claims that the one year statutory period of

limitation did not begin to run until November 1996, because he

could not have discovered the factual predicate of his claim prior

to that time. See 28 U.S.C. § 2244(d)(1)(D). If Flanagan is

correct, then his § 2254 petition, which was filed six months later

on April 24, 1997, was timely.

Flanagan was tried in January 1989. Sometime thereafter,

Flanagan’s trial counsel was disbarred for undisclosed reasons.

Flanagan claims that as a result of the disbarment, he was unable

to locate his trial counsel for an extended period. In October

1996, Flanagan’s habeas counsel located Flanagan’s trial counsel in

a rehabilitation facility in rural Texas. In November 1996,

Flanagan’s habeas counsel secured an affidavit from Flanagan’s

trial counsel. The affidavit states that trial counsel does not

remember whether he and Flanagan discussed the concept that

Flanagan could refuse to testify.

Flanagan argues that the lawyer’s affidavit forms part of the

factual predicate of his suit because, by not conclusively negating

the proposition, the affidavit implicitly supports Flanagan’s claim

that he was not informed of his right not to testify. Flanagan is

confusing his knowledge of the factual predicate of his claim with

5
the time permitted for gathering evidence in support of that claim.

Trial counsel’s affidavit neither changes the character of

Flanagan’s pleaded due process claim nor provides any new ground

for Flanagan’s federal habeas petition. Section 2244(d)(1)(D) does

not convey a statutory right to an extended delay, in this case

more than seven years, while a habeas petitioner gathers every

possible scrap of evidence that might, by negative implication,

support his claim.

Interestingly, Flanagan did not even file trial counsel’s

purportedly crucial affidavit with his original federal habeas

petition. Rather, that affidavit was filed some time later as part

of Flanagan’s supplementary pleading. Flanagan supported his

original state habeas petition with his own affidavit, which was

executed on November 11, 1992. Flanagan’s November 1992 affidavit

sets forth the legal and factual basis for Flanagan’s claim that he

did not know he could refuse to testify.

We conclude that the lawyer’s affidavit formed no part of the

factual predicate of Flanagan’s due process claim. The factual

predicate of Flanagan’s claim, the fact that he was called to

testify and did not know he had the right to refuse, was actually

known to Flanagan no later than November 11, 1992, when he executed

the affidavit used to support his claim herein. Likewise, the

absence of trial counsel’s affidavit did not prevent Flanagan from

pursuing state habeas relief on that same ground. Flanagan’s

contention that the one year statute of limitations did not begin

to run until November 1996 is without merit.

6
 IV.

Having concluded that the one year limitation period was not

tolled by the statutory exception embodied in § 2244(d)(1)(D), we

return to the statute to determine whether Flanagan’s petition was

otherwise time-barred.

Flanagan’s conviction became final on or about February 19,

1991. See 28 U.S.C. § 2244(d)(1)(A). Flanagan filed one

application for state habeas relief. The parties agree, and we

will accept for the sake of argument only, that the one year

limitation period did not begin until Flanagan’s state application

for habeas corpus relief was finally denied on May 12, 1993.1 See

id. § 2244(d)(2). There are no allegations that the state imposed

an unconstitutional impediment to the filing of Flanagan’s petition

for federal relief or that the Supreme Court has announced a new

rule applicable to Flanagan’s claim. Therefore, the statutory

exceptions embodied in § 2244(d)(1)(B) and § 2244(d)(1)(C) do not

apply. We conclude that Flanagan’s claim was time-barred no later

than May 12, 1994, almost two years before the April 24, 1996

1
Lest this opinion be cited as controlling authority with
respect to the application of § 2244(d)(2), we feel compelled to
add that the one year period almost certainly began running before
that time. The mere existence of an application for state habeas
relief does not, as the parties’ stipulation suggests, prevent the
one year period of limitation from beginning until the state habeas
application is finally decided. Rather, § 2244(d)(2) provides that
the period during which a properly filed state habeas application
is pending must be excluded when calculating the one year period.
Under the plain language of the statute, any time that passed
between the time that Flanagan’s conviction became final and the
time that his state application for habeas corpus was properly
filed must be counted against the one year period of limitation.

7
effective date of AEDPA.

Our Court recently joined many of our sister circuits by

holding that AEDPA’s one year statute of limitation cannot be

applied to retroactively extinguish claims that were technically

time-barred before the effective date of AEDPA. United States v.

Flores, 135 F.3d 1000, 1002-05 (5th Cir. 1998); see also Angelone,

1998 WL 389030 at *5; Miller v. Marr, 141 F.3d 976, 977 (10th Cir.

1998), petition for cert. filed, __U.S.L.W.__ (U.S. July 10, 1998)

(No. 98-5195); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998);

Calderon v. United States Dist. Court, 128 F.3d 1283, 1287 (9th

Cir. 1997), cert. denied, 118 S. Ct. 899 (1998); United States v.

Simmonds, 111 F.3d 685, 745-46 (10th Cir. 1997); Lindh v. Murphy,

96 F.3d 856, 866 (7th Cir. 1996), rev’d on other grounds, 117

S. Ct. 2059, 2068 (1997). Flores recognized that “‘all statutes of

limitation must proceed on the idea that the party has full

opportunity afforded him to try his right in the courts.’” Flores,

135 F.3d at 1004 (quoting Wilson v. Iseminger, 22 S. Ct. 573, 575

(1902)). To permit a statute of limitation to “‘bar the existing

rights of claimants without affording this opportunity’” would

amount to an “‘unlawful attempt to extinguish rights arbitrarily.’”

Id. (quoting Wilson, 22 S. Ct. at 575). A statute of limitation

must allow a reasonable time after it takes effect for the

commencement of suits upon existing claims. Id. Thus, Flores

concluded that habeas petitioners must be afforded a reasonable

8
time after AEDPA’s effective date for the filing of petitions for

collateral relief based upon claims that would otherwise be time-

barred before AEDPA’s April 24, 1996 effective date. Id. at 1004-

05.2

Flores also considered what would constitute a reasonable

post-AEDPA time period for the filing of pre-existing and otherwise

time-barred claims. Flores, 135 F.3d at 1005. The Court rejected

the ad hoc approach then being used by the Second Circuit, and

embraced instead a bright-line rule that the “reasonable time”

period contemplated by the Court’s holding would be co-extensive

with AEDPA’s one year statutory period of limitation. Id. at 1005-

06. The Court reasoned that the bright-line rule would tend to

“protect the reliance interests of affected parties without

contravening the legislative intent underlying the statute.” Id.

at 1005.3 Thus, petitioners like Flanagan, whose claims would

2
Although Flores dealt with the analogous statutory period
of limitation governing motions for habeas corpus relief from
federal conviction under 28 U.S.C. § 2255, the Court’s decision was
not limited to § 2255 motions. See Flores, 135 F.3d at 1002 n.7.
Rather, the Court noted that the limitation provisions for § 2255
motions and § 2254 petitions are virtually identical. Id. The
Court further noted that § 2255 and § 2254 actions themselves are
quite similar and that the statutes should generally be read in
pari materia, where not obviously inconsistent. Id. Signifi-
cantly, the Court also relied upon § 2254 cases to reach its
decision in Flores. See id. The Court’s treatment of the issue
demonstrates that its holding was intended to apply to both § 2254
and § 2255 cases, and we consider Flores to be controlling
authority in this § 2254 case.
3
Since Flores was decided, the Second Circuit has abandoned
the ad hoc approach in favor of the same bright-line rule adopted
in Flores. See Ross v. Artuz, No. 97-2789, 1998 WL 400446 at *4-5
(2d Cir. June 24, 1998); Mickens v. United States, No. 97-2734,
1998 WL 350078 at *3 (2d Cir. June 24, 1998); Joseph v. McGinnis,
No. 97-2656, 1998 WL 350075 at *1 (2d Cir. June 24, 1998); Rosa v.

9
otherwise be time-barred prior to the April 24, 1996 effective date

of AEDPA, now have one year after the April 24, 1996 effective date

of AEDPA in which to file a § 2254 petition for collateral relief.

Id. at 1006.

V.

Flanagan’s petition was filed on April 24, 1997. The state

argues that Flanagan’s petition was untimely because it was filed

one year and one day after the effective date of AEDPA. The key

issue here is how the one year “reasonable time” period prescribed

by Flores is to be computed.

“This Court has consistently used [Federal] Rule [of Civil

Procedure] 6(a)’s method for computing federal statutory time

limitations.” Lawson v. Conyers Chrysler, Plymouth & Dodge Trucks,

Inc., 600 F.2d 465, 466 (5th Cir. 1979); see also Vernell v. United

States Postal Serv., 819 F.2d 108, 111 n.6 (5th Cir. 1987); Gotham

Provision Co., Inc. v. First State Bank, 669 F.2d 1000, 1014 & n.17

(5th Cir. Unit B 1982); Jackson v. United States Postal Serv., 666

F.2d 258, 260 (5th Cir. 1982) (all expressly applying Rule 6(a) to

federal statutory limitation periods); FDIC v. Bledsoe, 989 F.2d

805, 811-12 (5th Cir. 1993); Hanner v. State of Miss., 833 F.2d 55,

59 (5th Cir. 1987) (both implicitly applying Rule 6(a) to federal

statutory limitation periods). Rule 6(a) provides, in relevant

part:

Senkowski, No. 97-2974, 1998 WL 334346 at *1 (2d Cir. June 24,
1998).

10
 In computing any period of time prescribed or
allowed by these rules, by the local rules of any
district court, by order of court, or by any
applicable statute, the day of the act, event, or
default from which the designated period of time
begins to run shall not be included.

FED. R. CIV. P. 6(a). If we adhere to our longstanding rule that

Rule 6(a) applies when computing federal periods of limitation,

then April 24, 1996, the effective date of AEDPA, must be excluded

from the computation of the one year post-AEDPA time period, and a

petition raising a claim that was time-barred prior to April 24,

1996 is timely if filed on or before April 24, 1997. If, on the

other hand, Rule 6(a) is inapplicable to the reasonable time period

prescribed by Flores, then a petition raising a claim that was

time-barred prior to April 24, 1996 must be filed on or before

April 23, 1997.

The circumstances in Flores did not require the Court to

consider whether Rule 6(a) applied to the reasonable time period

there defined. Moreover, the Court did not expressly decide

whether the reasonable time period for filing an otherwise time-

barred claim would expire on April 23, or instead, on April 24. Of

those circuits that have included a particular date in their

decisions, most have simply announced that the reasonable time

period will expire on April 23 or April 24. E.g., Angelone, 1998

WL 389030 at *6 (petitions filed on or before April 23, 1997 are

timely); Miller, 141 F.3d at 977 (petitioner must “file prior to

April 24, 1997, one year after the enactment of the AEDPA”); Burns,

134 F.3d at 112 (“motions on file on or before April 23, 1997" are

timely). The Second Circuit is the only circuit to have identified

11
and directly addressed whether Rule 6(a)’s potential application to

AEDPA’s limitation period. In a spate of recent cases, that Court

held that Rule 6(a) operates to extend the statutory period of

limitation, and therefore, the reasonable time period permitted for

the filing of otherwise time-barred claims, until April 24, 1997.

See Ross, 1998 WL 400446 at *7 (“When a statute of limitations is

measured in years, the last day for instituting the action is the

anniversary date of the start of the limitations period.”);

Mickens, 1998 WL 350078 at *4 (“motions pursuant to § 2255 are not

barred by the statute of limitations established by AEDPA if filed

on or before April 24, 1997, the first anniversary of AEDPA’s

effective date”); Joseph, 1998 WL 350075 at *1 (motions “filed

within one year after the effective date of AEDPA, i.e. April 24,

1997" are timely); Rosa, 1998 WL 334346 at *1 (motions filed prior

to the “April 24, 1997 expiration of the one-year grace period” are

timely).

We agree with the considered judgment of the Second Circuit.

In Flores we held that the parties’ reliance interests justified a

rule equating AEDPA’s statutory limitation period with the

reasonable time period for filing claims that would otherwise be

time-barred before the effective date of AEDPA. Flores, 135 F.3d

at 1005. Flores relied in part upon this Court’s decision in

Hanner v. Miss., 833 F.2d 55 (5th Cir. 1987), noting that a one

year bright-line rule provided a “‘comparative ease of

administration, consistency, and predictability” that was “decisive

in its favor.’” Id. at 1006 n.19 (quoting Hanner, 833 F.2d at 58

12
n.6). While we are sensitive to the fact that AEDPA was clearly

intended to restrict the time limit for filing a federal habeas

petition, we do not see any significant benefit to be gained from

cutting the “reasonable period” off at April 23, rather than April

24. Indeed, the same interests in predictability and consistency

that drove our decision in Flores suggest that we should be loath

to deviate from our well-settled rule in favor of applying Rule

6(a) by creating a different rule in this context.

Nonetheless, Rule 6(a) is a general statutory rule, which may

be supplanted when the statute at issue provides more specific

direction. See FDIC v. Enventure V, 77 F.3d 123, 125 (5th Cir.

1996). We cannot, therefore, conclude our analysis without an

examination of the plain language of the statute. Section

2244(d)(1) provides that the one year period shall “run from” the

later of four alternative dates. The statutory provision does not

contain express language that would tend to negate the application

of Rule 6(a). Moreover, and in contrast to the statutory

limitation provisions construed in Enventure V, § 2244(d)(1) does

not contain a separate provision addressing the computation of

time.4 Given the lack of any express direction in the statute

4
We note that Enventure V appears to be the only published
case in our Circuit rejecting application of Rule 6(a) to a federal
statutory limitation period. Moreover, the Court’s holding in
Enventure V, that Rule 6(a) does not apply to the limitation
provision in § 1821(d) of the Financial Institutions Reform,
Recovery, and Enforcement Act (FIRREA), is in at least potential
conflict with the Court’s implicit application of Rule 6(a) to the
same provision in FDIC v. Bledsoe, 989 F.2d 805, 811-12 (5th Cir.
1993). Enventure V distinguished Bledsoe as “confusing dicta at
best.” Enventure V, 77 F.3d at 125. We need not resolve the
conflict between the Court’s implicit application of Rule 6(a) to

13
itself, we are compelled to adhere to our Circuit’s well-

established rule that Rule 6(a) governs the computation of federal

statutory periods of limitation. We hold that Rule 6(a) applies to

the computation of the one year limitation period in § 2244(d) of

AEDPA. By extension, when computing the one year time period

applicable to petitions raising claims that would otherwise be

time-barred as of the April 24, 1996, that date must be excluded

from the computation and petitions filed on or before April 24,

1997 are timely.

CONCLUSION

We affirm the district court’s determination that the statute

of limitation was not tolled until Flanagan was able to contact and

obtain an affidavit from his trial counsel. We reverse the

district court’s implicit holding that Rule 6(a) does not govern

the computation of AEDPA’s one year limitation periods, and the

district court’s express holding that the one year post-AEDPA

period applicable to Flanagan’s § 2254 claim expired on April 23,

1997, rather than on April 24, 1997.

Accordingly, the district court’s dismissal is REVERSED and

FIRREA in Bledsoe and the Court’s express rejection of that
application in Enventure V. As noted in the text, the statutory
provisions at issue in Bledsoe and Enventure V included an
independent section addressing when the statute of limitation began
to run. See id. at 124 n.1. The statutory language used in
§ 2244(d) of AEDPA, which simply states that the period “runs from”
a particular date, is more consistent with the language at issue in
our cases finding Rule 6(a) to be applicable. E.g., Lawson, 600
F.2d at 465 (applying Rule 6(a) to limitation provision requiring
that suit be filed “within one year from” the date of the
violation).

g:\opin\97-10192.opn 14
the cause REMANDED for further proceedings consistent with this

opinion.

g:\opin\97-10192.opn 15