Case: 09-10632 Document: 00511331281 Page: 1 Date Filed: 12/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 23, 2010
No. 09-10632 Lyle W. Cayce
Clerk
RICHARD THEODORE THARPE, JR.,
Petitioner-Appellant
v.
RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institution Division,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
Before WIENER, GARZA, and PRADO, Circuit Judges.
WIENER, Circuit Judge:
Petitioner-Appellant Richard Theodore Tharpe, Jr. pleaded guilty in state
court to the felony offense of possession with intent to distribute cocaine. The
trial court accepted his guilty plea, but instead of convicting Tharpe and
imposing incarceration, the court deferred adjudicating his guilt and placed him
on deferred-adjudication probation. After he violated his probation, however, the
trial court convicted Tharpe and sentenced him to twenty-five years in prison.
After exhausting his state court remedies, Tharpe filed this federal habeas
corpus application, asserting claims related to both his deferred adjudication and
his conviction and sentence.
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The district court dismissed Tharpe’s deferred-adjudication claims as time-
barred, applying our holding in Caldwell v. Dretke1 that the one-year statute of
limitations of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) for bringing claims related to his deferred adjudication started to run
when the state court’s deferred-adjudication order became final. We granted
Tharpe a certificate of appealability (COA) on the question whether, in light of
the Supreme Court’s holding in Burton v. Stewart, the district court correctly
dismissed his deferred-adjudication claims as untimely.2 We hold that, under the
discrete circumstances of this case, our analysis in Caldwell is not affected by
Burton, so we affirm the district court’s dismissal of Tharpe’s deferred-
adjudication claims as untimely.
I. FACTS & PROCEEDINGS
A. Facts
Tharpe pleaded guilty in state court to the felony offense of possession
with intent to distribute cocaine. On June 26, 2006, the trial court accepted
Tharpe’s guilty plea, but did not adjudicate his guilt or sentence him, instead
placing him on deferred-adjudication probation. Tharpe wrote a letter to the
court suggesting that he wanted to appeal the deferred-adjudication order. The
trial court treated Tharpe’s letter as a notice of appeal and submitted it to the
state court of appeals. That court dismissed the appeal on January 11, 2007,
concluding that Tharpe had waived his right to appeal and that the appeal was
untimely as well.3
1
429 F.3d 521 (5th Cir. 2005).
2
549 U.S. 147 (2007) (per curiam).
3
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).
2
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After the trial court ordered Tharpe’s deferred adjudication, but before the
appellate court dismissed his appeal, the State petitioned the trial court for an
adjudication of guilt based on a violation of probation. In December 2006, the
trial court held an adjudication hearing at which it determined that Tharpe had
violated the conditions of his probation. That court then convicted Tharpe of the
underlying drug offense and, on January 10, 2007, sentenced him to twenty-five
years in prison. That same day, Tharpe filed a notice of appeal of that conviction
and sentence. The judgment was affirmed on direct appeal,4 and the Texas Court
of Criminal Appeals refused discretionary review on January 16, 2008.
On January 31, 2008, Tharpe challenged both his deferred-adjudication
and adjudication-of-guilt proceedings in a state post-conviction petition. On May
21, 2008, the Texas Court of Criminal Appeals denied those challenges without
written order.
B. Proceedings
Tharpe filed this federal habeas corpus application on June 2, 2008
pursuant to the AEDPA. He asserted nine claims, seven related to the deferred-
adjudication order and two related to his subsequent conviction and sentence.
The district court applied our holding in Caldwell and dismissed the seven
deferred-adjudication claims as untimely under the AEDPA because more than
one year had passed between the deferred-adjudication order becoming final and
the filing of his federal petition,5 even after taking into account the time tolled
for state post-conviction proceedings.6 The district court determined that the two
4
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).
5
See 28 U.S.C. § 2244(d)(1).
6
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.
3
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claims which addressed Tharpe’s conviction and sentence were timely, but
denied them on the merits.7
We granted a COA to determine whether, in light of the Supreme Court’s
holding in Burton, the district court correctly relied on Caldwell in dismissing
the deferred-adjudication claims.
II. ANALYSIS
A. Standard of Review
The district court ruled as a matter of law that Tharpe’s deferred-
adjudication claims were time-barred, relying on our holding in Caldwell that
final deferred-adjudication orders trigger the AEDPA’s statute of limitations. We
review questions of law de novo.8
B. Deferred-Adjudication Orders Under Caldwell v. Dretke
Under Texas law, a judge may defer the adjudication of guilt of particular
defendants and place them on “community supervision” if they plead guilty or
nolo contendere.9 If such a defendant wishes to raise issues related to his guilty
plea or deferred adjudication, he must do so on direct appeal from the deferred-
adjudication order immediately after it is imposed; he may not wait until after
he violates the terms of his probation and is held guilty.10 If the defendant does
not appeal at the time of deferred adjudication and thereafter violates a
condition of his community supervision, however, the court holds a hearing to
determine whether it should then proceed to impose a judgment of guilt. If the
trial court holds such a hearing and convicts the defendant, it also sentences
7
See Tharpe v. Quarterman, No. 4:08-CV-366-A, 2009 WL 1505195, at *4-5 (N.D. Tex.
May 27, 2009).
8
See Bostick v. Quarterman, 580 F.3d 303, 306 (5th Cir. 2009).
9
See TEX . CODE CRIM . PROC . ANN . art. 42.12, § 5(a).
10
See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).
4
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him.11 Under these circumstances, “all proceedings, including assessment of
punishment, pronouncement of sentence, granting of community supervision,
and defendant’s appeal continue as if the adjudication of guilt had not been
deferred.” 12
In Caldwell, we held that the AEDPA’s statute of limitations starts to run
for deferred-adjudication habeas claims when the deferred-adjudication order
becomes final.13 The AEDPA’s statute of limitations, 28 U.S.C. § 2244(d)(1),
provides that “[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”14 and that it runs from “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such
review.”15 We concluded that “[t]he plain language of AEDPA, as well as its
underlying purpose” require that we treat a deferred-adjudication order as a
“judgment” under this provision as well as under 28 U.S.C. § 2254(a), which
confers habeas jurisdiction on federal courts for state prisoners only if they are
“in custody pursuant to the judgment of a State court.” 16
In the end, we held that, for a Texas prisoner who is subject to a deferred-
adjudication order, the statute of limitations for a federal habeas application
raising claims that address his deferred adjudication begins to run when his
11
See TEX . CODE CRIM . PROC . ANN . art. 42.12, § 5(b).
12
Id.
13
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.
14
28 U.S.C. § 2244(d)(1) (emphasis added).
15
Id. § 2244(d)(1)(A) (emphases added).
16
Caldwell, 429 F.3d at 527; 28 U.S.C. § 2254(a) (emphasis added).
5
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deferred-adjudication order becomes final, whether or not he is later convicted
and sentenced.17 The Supreme Court denied certiorari, with Justice Stevens
“respecting” the denial because “the Court of Appeals expressly limited its
holding to instances where a petitioner brings an untimely challenge to
substantive issues relating to an original order of deferred adjudication
probation.” 18
C. Burton v. Stewart’s Consideration of “Final Judgments”
Subsequent to our holding in Caldwell, the Supreme Court in Burton had
occasion to address the definition of “judgment” for purposes of § 2244. The
petitioner in Burton had received two amended judgments because of
resentencing issues. Thus, at successive times he was in custody pursuant to a
1994 judgment, then pursuant to a 1996 judgment, and then pursuant to a 1998
judgment.19 In December 1998, the petitioner filed his first federal habeas
application challenging aspects of his conviction that remained the same for all
three judgments. That filing came after his 1998 judgment had been entered but
before it became final. Then, after the 1998 judgment became final, the
petitioner filed a second federal habeas application challenging his 1998
sentence. The Court had to determine, therefore, whether the petitioner’s second
habeas application, which challenged his sentence as part of the 1998 judgment,
should be considered “second or successive” under the AEDPA in light of his first
petition’s challenge to his original conviction.
The Burton petitioner insisted that the 1994 judgment, which he thought
he was challenging in his first habeas application, had to be considered a
17
See Caldwell, 429 F.3d at 530.
18
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).
19
Burton, 549 U.S. at 149-52.
6
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different “judgment” from the 1998 judgment; otherwise, he argued, the
AEDPA’s statute of limitations would have barred him forever from challenging
the 1994 conviction in federal court. The Supreme Court disagreed:
Final judgment in a criminal case means sentence. The sentence is
the judgment. Accordingly, [petitioner’s] limitations period did not
begin until both his conviction and sentence became final by the
conclusion of direct review or the expiration of the time for seeking
such review—which occurred well after [petitioner] filed his 1998
petition.20
The Court went on to explain that when the petitioner filed his first habeas
application, he was in custody pursuant to the 1998 “judgment of a State court,”
which gave the district court habeas jurisdiction under § 2254, “even if, at that
point, the 1998 judgment was not final for purposes of triggering the AEDPA’s
statute of limitations.”21 Therefore, held the Court, the petitioner’s second
habeas application, which attacked the same judgment, was successive and thus
was barred by the AEDPA.22
D. Caldwell’s Holding in Light of Burton
The Supreme Court in Burton putatively called the analysis of Caldwell
into question by emphasizing that, for purposes of the AEDPA, the term
“judgment” includes both the conviction and the sentence. This arguably blocks
our deeming a deferred-adjudication order to be a “judgment.”
Because Burton only addressed claims relating to a conviction and
sentence, however, its analysis is logically limited to such claims. The Burton
20
Id. at 156-57 (quotation marks omitted and emphases in original).
21
Id. at 157 (emphasis added).
22
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.”).
7
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Court was asked specifically whether a habeas claim that challenges a conviction
and another habeas claim that challenges a sentence involve two different
“judgments” for AEDPA purposes. The Court answered “no.” In contrast, the
question we are asked in the instant case is whether a habeas claim that
challenges a deferred-adjudication order and another habeas claim that
challenges a conviction and sentence involve two different “judgments” for
AEDPA purposes. Ours is an entirely different question, to which—consistent
with our holding in Caldwell—we answer “yes.” It follows, then, that in dealing
with two entirely separate and distinct judgments—one a deferred-adjudication
order and the other a judgment of conviction and sentence—we are dealing with
two separate and distinct limitation periods under the AEDPA.
After the state trial court entered Tharpe’s deferred-adjudication order on
June 26, 2006, he was in custody pursuant to a state judgment—viz. that
deferred-adjudication order—triggering our federal habeas jurisdiction under
§ 2254. Then, when the appeal of his deferred-adjudication order was dismissed
by the State’s highest court on January 11, 2007, that order, i.e., that judgment,
became final, triggering the AEDPA’s one-year limitations period within which
Tharpe could challenge his deferred-adjudication order. With the inclusion of the
time tolled for exhaustion of state remedies, Tharpe theoretically had until
January 11, 2008 to file a federal habeas application challenging the June 26,
2006 deferred-adjudication order. Thus, when—on January 31, 2008—Tharpe
first began his efforts to exhaust state habeas remedies on his deferred-
adjudication claims, his one-year federal limitations period had already run.
Consequently, those claims were appropriately found to be time-barred by the
district court following the filing of Tharpe’s federal habeas application on June
2, 2008; and we so hold.
Moreover, our holding here is wholly reconcilable with Burton. Inasmuch
as Tharpe’s deferred-adjudication order was a separate judgment from his
8
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subsequent judgment of conviction and sentence, that subsequent judgment also
constituted a “final judgment” per Burton and was thus unaffected, for purposes
of the AEDPA’s statute of limitations, by the earlier finality of his deferred-
adjudication order. Like the petitioner in Burton, who was in custody—first
pursuant to his 1994 judgment, then pursuant to his 1996 judgment, and then
pursuant to his 1998 judgment—Tharpe was in custody first pursuant to the
deferred-adjudication order and then pursuant to his January 10, 2007 judgment
of conviction and sentence.23 Therefore, Tharpe’s habeas claims challenging the
deferred-adjudication order were untimely because the AEDPA’s statute of
limitations had already run for those claims.24
III. CONCLUSION
For the foregoing reasons, the district court’s denial of Tharpe’s seven
deferred-adjudication claims as time-barred is AFFIRMED.
23
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.
24
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.
9