Ybanez v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-10930

Summary Calendar

GILBERT G. YBANEZ
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

*****************************************************************

No. 98-50487

Summary Calendar

ROLLAND E. LAWSON
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 Western District of Texas

March 8, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:

In these consolidated cases, Ybanez and Lawson appeal the

dismissal of their federal habeas petitions as time-barred. We

reject their argument that the limitations bar of federal habeas

review of state convictions starts to run when the state rules on

habeas applications.

Ybanez's murder conviction became final March 17, 1988, when

the Texas Court of Criminal Appeals denied his petition for

discretionary review. Ybanez filed a state habeas application

September 4, 1992, which was denied by the Texas Court of Criminal

Appeals on February 10, 1993.

He filed a second state habeas application April 24, 1997,

which included a new claim that a jury instruction was

unconstitutional. The instruction had been upheld by the Texas

Court of Criminal Appeals in 1990, but the court reversed that

decision in 1994. The second application was dismissed as a

successive petition June 4, 1997.

Four months later, November 6, 1997, Ybanez filed a federal

habeas petition, which the district court dismissed as barred by

2
the AEDPA's one-year statute of limitations set forth in 28 U.S.C.

§ 2244(d)(1).

Lawson's murder conviction became final November 17, 1993,

when the Texas Court of Criminal Appeals denied his petition for

discretionary review. He filed a state habeas application July 24,

1996, which was denied December 11, 1996. Lawson's state habeas

application raised an ineffective assistance of counsel claim.

Lawson filed a federal habeas petition December 1, 1997, and the

magistrate judge recommended that it be dismissed as time-barred.

The district court adopted the recommendation.

Because Ybanez's and Lawson's convictions became final before

the enactment of the AEDPA, each had until April 24, 1997 to file

a federal habeas petition. See Flanagan v. Johnson, 154 F.3d 196,

201 (5th Cir. 1998)(establishing that date as the deadline for

petitioners whose convictions were final before enactment of the

AEDPA). Under 28 U.S.C. § 2244(d)(1)(A), a pending state habeas

application tolls the statute of limitations created by the AEDPA.

Even with tolling for the disposition of their state habeas

applications, the AEDPA's statute of limitations had expired for

both petitioners, and we affirm the dismissal of their petitions on

that ground.

The petitioners argue that their claims are not time-barred

because the rulings on their state court habeas applications are

the factual predicates of their federal habeas petitions under 28

3
U.S.C. § 2244(d)(1)(D).1 Ybanez argues that he was denied due

process of law by the state court's refusal to consider his second

habeas application, and that the state court decision is the

factual predicate of his purely legal question. Lawson argues that

his ineffective assistance of counsel claim presents a mixed

question of law and fact--whether the state court's application of

law to facts was unreasonable--and that the state court decision

is the factual predicate of his federal petition. The petitioners

argue that since they could not present federal habeas claims on

these decisions until after the state courts rendered them, the

one-year statute of limitations under the AEDPA began to run from

the dates of the state court decisions.

Section 2244(d)(1)(D) provides for equitable tolling when the

facts on which a federal habeas claim is based would not have been

discovered by a duly diligent petitioner. See, e.g., Fisher v.

Johnson, 174 F.3d 710, 715 n.14 (5th Cir.), reh'g denied, 189 F.3d

471 (5th Cir. 1999). These facts do not include asserted errors in

a state court's disposition of a state habeas application. Behind

1
The section provides that:

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

4
the petitioners' language is an extraordinary proposition: the

factual predicate for their claims consists neither of evidence nor

events at trial but in the state court's rulings on their

constitutional claims. Congress granted petitioners one year to

file a federal habeas petition. It is, inter alia, one year from

the latest of the dates the factual predicate for the claim could

have been discovered or the conclusion of direct review. The

statute does not count the time a petitioner's state claim was

pending in the state court. This structure, fleshed out by many

federal decisions, would be turned upside down should we play this

game of recharacterization and semantics.

AFFIRMED.

5