Proctor v. Cockrell

Revised March 15, 2002

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________

No. 00-20698
_____________________________________

Aaron Dwayne PROCTOR,
and Jonathon L. LEMELL,

Petitioners-Appellants,

V.

Janie COCKRELL, Director
Texas Department of Criminal Justice,
Institutional Division

Respondent-Appellee.

__________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
__________________________________________________

March 12, 2002

Before KING, Chief Judge, DAVIS and MAGILL,* Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Aaron Proctor and Jonathon Lemell appeal from the district

court’s denial of their petitions for writs of habeas corpus

under 28 U.S.C. §2254. Petitioners argue that the Texas Court of

Criminal Appeals’ retroactive application of a new judicial

interpretation of Texas law shifting the burden of proof to the

*
Circuit Judge for the Eighth Circuit, sitting by
designation.
defendant to establish the statute of limitations as a defense

violates the Due Process Clause of the Fourteenth Amendment.

Under the standard of review provided in the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), which governs this

case, we conclude that the decision of the Texas Court of

Criminal Appeals was not “contrary to, or an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court.” Accordingly, we affirm the district court’s

denial of habeas relief.

I.

On January 29, 1982, five men, including Aaron Proctor and

Jonathon Lemell, robbed Wing K. Lew, Yit Oi Lew (Wing’s wife),

and Gloria Windom at gunpoint in the small grocery store that the

Lews operated in Houston, Texas. During the robbery, Proctor

shot Mr. Lew in the head and killed him.

The case reaches us following an extensive procedural

history. On July 29, 1982, a Texas grand jury indicted

petitioners for aggravated robbery of Mr. Lew by placing Ms. Lew

in fear of imminent bodily injury or death. A jury found

petitioners guilty of the aggravated robbery offense. The Texas

Fourteenth Court of Appeals reversed the convictions, however,

because of error in the jury selection process.

On January 8, 1988, almost six years after the commission of

the offense, a grand jury again indicted petitioners, this time

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for aggravated robbery of Mr. Lew by causing serious bodily

injury to him. The jury again found petitioners guilty.

While the jury was deliberating at the punishment stage of

the trial, petitioners moved for a directed verdict of acquittal

on the ground that the state had failed to prove beyond a

reasonable doubt that the prosecution was brought within the

five-year statute of limitations period for aggravated robbery.

Petitioners argued that because the crime was committed on

January 29, 1982, but the second indictment was not filed until

January 8, 1988, nearly six years later, their prosecution was

time-barred absent proof beyond a reasonable doubt to the

contrary. At a hearing on this motion, the state conceded that

it had presented no evidence at trial to establish that the

prosecution was timely, but it proffered evidence to the court to

that effect at that time.1 At the conclusion of the hearing, the

trial court denied petitioners’ motions for acquittal. The jury

subsequently assessed Proctor’s sentence at life imprisonment and

Lemell’s at 65 years’ imprisonment.

1
Specifically, the state presented evidence that the
original indictment charged petitioners with a number of different
offenses, including the aggravated robbery of Mr. Lew, the offense
at issue in the second trial. Because no motion to dismiss that
count of the original indictment was ever made, it remained
pending after the original trial, thereby tolling the statute of
limitations as to that offense. See Tex. Code Crim. P. Ann. art.
12.05(b) (West 2000) (“The time during the pendency of an
indictment, information, or complaint shall not be computed in the
period of limitation.”).

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 The Texas Eleventh Court of Appeals reversed petitioners’

convictions on grounds that the convictions violated the Double

Jeopardy Clause of the United States Constitution. The Texas

Court of Criminal Appeals (“the TCCA”) reversed the judgment of

the court of appeals on this issue and remanded the case to that

court to consider other alleged points of error. On remand, the

court of appeals affirmed petitioners’ convictions, holding that

petitioners could not argue that their prosecution was time-

barred because they had failed to make a timely objection.

Petitioners filed another appeal.

The TCCA again reversed the court of appeals, this time on

the limitations issue.2 The TCCA stated that “[t]he State has

the burden to prove that the offense was committed within the

statute of limitations period.”3 The court then cited a line of

cases to support this proposition.4 The TCCA explained that “[a]

defendant’s failure to object to a limitations defect on the face

2
Lemell v. State, 915 S.W.2d 486, 489-90 (Tex. Crim. App.
1995).
3
Id. at 489.
4
Id. (citing Barnes v. State, 824 S.W.2d 560, 562 (Tex.
Crim. App. 1992) (“The state had the burden to establish beyond a
reasonable doubt that the offense was committed within the statute
of limitations.”); Vasquez v. State, 557 S.W.2d 779, 783 n. 5 (Tex.
Crim. App. 1977) (“The burden of proof is always on the State to
show that the offense alleged was committed . . . within the period
of limitation regardless of the date alleged.”); Donald v. State,
306 S.W.3d 360, 362 (Tex. Crim. App. 1957) (reiterating the “well-
established rule” that the “burden is on the state to show that the
offense was committed within the period of limitations”).

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of the indictment does not relieve the State of its burden of

proving at trial that the alleged offense occurred within the

limitations period.”5 In light of this holding, the TCCA

remanded the case again to the court of appeals to determine

whether the state had presented sufficient evidence at trial of

the timeliness of the prosecution to sustain the convictions.6

On the second remand, the court of appeals determined that

the evidence at trial was insufficient to establish that the

prosecution was timely brought and, therefore, ordered

acquittals. The TCCA then granted the State’s petitions for

discretionary review to reconsider its earlier ruling. In its

second opinion on the limitations issue, issued on March 11,

1998, the TCCA overruled its prior precedent, including its

previous decision in this case, and held that the burden of proof

on limitations initially belongs to the defense, not the

prosecution.7 Under this new rule, the defendant must assert

limitations as a defense before the conclusion of the guilt-

innocence stage of the trial.8 If the defendant asserts a

limitations defense, only then must the prosecution prove beyond

5
Lemell, 915 S.W.2d at 489.
6
Id. at 490.
7
Proctor v. State, 967 S.W.2d 840, 844-45 (Tex. Crim. App.
1998).
8
Id. at 844.

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a reasonable doubt that the prosecution is timely.9 In reaching

this result, the TCCA acknowledged that it had “held repeatedly

that the State must always prove, as part of its burden of proof

in a criminal prosecution, that the prosecution is not

limitations-barred, even if the defendant does not raise the

issue.”10 The TCCA then stated, however, that its previous cases

lacked consistency, citing three cases in support of this

proposition.11

Finally, the TCCA concluded that retroactive application of

the new limitations rule did not violate petitioners’ due process

rights because it did not “deprive them, retroactively, of fair

warning of what conduct will give rise to which criminal

penalties.”12 Relying on Collins v. Youngblood,13 the court

reasoned that its decision did not run afoul of the Due Process

Clause because it did “not retroactively alter the definition of

aggravated robbery as it existed in 1982, its range of

punishment, or the substantive defenses that were available with

9
Id.
10
Id. at 843.
11
Id. (citing Ex parte Schmidt, 500 S.W.2d 144, 146 (Tex.
Crim. App. 1973); Ex parte Ward, 470 S.W.2d 684, 686 (Tex. Crim.
App. 1971); State v. Yount, 835 S.W.2d 6, 9-10 (Tex. Crim. App.
1993)).
12
Id. at 845.
13
497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990).

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respect to it.”14

In August 1999, Proctor and Lemell petitioned for writs of

habeas corpus under 28 U.S.C. § 2254. The district court granted

the State’s motion for summary judgment and denied the petitions

without opinion. Petitioners now appeal.

II.

A.

In a federal habeas appeal, this court reviews the district

court’s grant of summary judgment de novo,15 “applying the same

standard of review to the state court’s decision as the district

court.”16 Because Proctor and Lemell filed their habeas

petitions after enactment of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”),17 that statute supplies the

appropriate standard of review of the state court’s order. In

relevant part, the AEDPA provides that a federal court may grant

habeas relief to a state prisoner where the state court’s

decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States.”18 The phrases “contrary

14
Proctor, 967 S.W.2d at 845.
15
See Williams v. Scott, 35 F.3d 159, 161 (5th Cir. 1994).
16
Beazley v. Johnson, 242 F.3d 248, 255 (5th Cir. 2001)
(quoting Thomson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998).
17
28 U.S.C. §§ 2241 et seq. (West 1996).
18
28 U.S.C. § 2254(d).

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to” and “unreasonable application of” have meanings independent

of each other and establish “two categories of cases in which a

state prisoner may obtain federal habeas relief with respect to a

claim adjudicated on the merits in state court.”19 Therefore, we

evaluate the TCCA’s decision under each of these standards in

turn below.

B.

We first consider whether the TCCA’s retroactive application

to petitioners of the new limitations rule is “contrary to . . .

clearly established federal law, as determined by the Supreme

Court.”20 A state court decision is “contrary to . . . clearly

established federal law, as determined by the Supreme Court” in

two circumstances: (1) where “the state court applies a rule that

contradicts the governing law set forth in [Supreme Court]

cases;” or (2) where “the state court decides a case differently

than [the Supreme Court] has on a set of materially

indistinguishable facts.”21 The Supreme Court has not decided a

case on facts materially indistinguishable from the one at hand.

Therefore, our task is to determine whether the TCCA’s

retroactive application of the new limitations rule to Proctor

and Lemell contradicted clearly established Supreme Court law as

19
Williams v. Taylor, 529 U.S. 362, 404 (2000).
20
28 U.S.C. § 2254(d).
21
Williams, 529 U.S. at 405, 412-13.

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it existed on March 11, 1998, the date of the TCCA’s decision.22

This requires an analysis of Supreme Court law up to that date.

The Ex Post Facto Clause provides that “[n]o State shall . .

. pass any . . . ex post facto Law.”23 As its text makes clear,

the Clause limits the powers of legislatures and does not, of its

own force, apply to the judiciary.24 The Supreme Court has long

recognized, however, that “limitations on ex post facto judicial

decisionmaking are inherent in the notion of due process.”25

Therefore, the Supreme Court’s ex post facto jurisprudence forms

the starting point of the due process inquiry.26

The touchstone of the Supreme Court’s ex post facto

jurisprudence is Calder v. Bull.27 In that opinion, Justice

Chase described four categories of prohibited ex post facto laws:

1st. Every law that makes an action done before the passing
of the law, and which was innocent when done, criminal; and
punishes such action. 2d. Every law that aggravates a
crime, or makes it greater that it was, when committed. 3d.
Every law that changes the punishment, and inflicts a

22
See id. at 412 (stating that “clearly established Federal
law” as used in the AEDPA “refers to the holdings, as opposed to
the dicta, of [the Supreme Court’s] decisions as of the time of the
relevant state-court decision”).
23
U.S. Const. art. I, § 10, cl. 1.
24
See Marks v. United States, 430 U.S. 188, 191 (1977).
25
Rogers v. Tennessee, 532 U.S. 451, 456 (2001); see also
Marks, 430 U.S. at 191-192; Bouie v. City of Columbia, 378 U.S.
347, 353-54 (1964).
26
See Bouie, 378 U.S. at 353-54.
27
Calder v. Bull, 3 U.S. 386 (1798).

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 greater punishment, that the law annexed to the crime, when
committed. 4th. Every law that alters the legal rules of
evidence, and receives less, or different, testimony, than
the law required at the time of the commission of the
offence, in order to convict the offender.28

It is the fourth of these categories, concerning changes in

the legal rules of evidence, that is at issue in this case.

Appellants argue that the Texas limitations rule “alters the

legal rules of evidence” by reversing the burden of proof on

limitations and falls squarely within Calder’s fourth category of

ex post facto laws. Thus, appellants argue that this new rule

cannot be retroactively applied to them. No Supreme Court case

has addressed the applicability of Calder’s fourth category to

judicial decisions. However, the Supreme Court has applied

Calder to determine whether other types of changes in judge-made

law violate the Due Process Clause.29

In Bouie v. City of Columbia,30 two African-American college

students were convicted of criminal trespass for participating in

a sit-in demonstration in a restaurant area of a drug store that

was reserved exclusively for whites.31 Although the students did

28
Id. at 390 (emphasis added).
29
See Bouie, 378 U.S. 347; Marks, 430 U.S. 188; Rabe v.
Washington, 405 U.S. 313 (1972) (overturning conviction on due
process grounds where Washington Supreme Court’s broadening of the
criminal statute was unexpected and did not give defendant fair
warning that his actions were proscribed).
30
378 U.S. 347.
31
Id.

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not know that the restaurant was reserved only for whites when

they entered, the police later informed them of this and asked

them to leave.32 The students refused.33 In affirming the

convictions, the South Carolina Supreme Court expanded its

construction of the state criminal trespass statute to cover not

only the act of entering another’s property after receiving

notice not to do so, but also the act of remaining after

receiving notice to leave.34

Relying on Calder, the United States Supreme Court reversed

the convictions.35 The Court stated that “an unforeseeable

judicial enlargement of a criminal statute, applied

retroactively, operates precisely like an ex post facto law.”36

Quoting Calder, the Court explained that an ex post facto law is

“one ‘that makes an action done before the passing of the law and

which was innocent when done, criminal; and punishes such

action,’ or ‘that aggravates a crime, or makes it greater than it

was, when committed.’”37 The Court concluded that because the

State Supreme Court’s unexpected judicial construction of the

32
Id. at 348.
33
Id.
34
See id. at 350.
35
378 U.S. 347.
36
Id. at 353.
37
Id. at 353 (quoting Calder v. Bull, 3 U.S. 386, 390
(1798)) (emphasis in original).

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statute did not give the defendants fair warning that their

conduct was prohibited, application of the new construction to

the defendants violated their due process rights.38

Similarly, in Marks v. United States,39 the defendants were

charged with transporting hard-core pornography in violation of

a federal statute.40 After the conduct giving rise to the

charges, but before the trial, the United States Supreme Court

decided Miller v. California,41 which announced a new test for

determining whether pornography is protected under the First

Amendment.42 Under the Court’s earlier decision in Memoirs v.

Massachusetts,43 the First Amendment protected expressive

material unless it was “utterly without redeeming social

value.”44 Under Miller, however, a work is constitutionally

protected unless “the work, taken as a whole, lacks serious

literary, artistic, political, or scientific value.”45

At trial, the defendants argued that they should be judged

38
Id. at 362.
39
Marks v. United States, 430 U.S. 188 (1977).
40
Id.
41
Miller v. California, 413 U.S. 15, 23-24 (1973).
42
Id.
43
Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966).
44
Id.
45
Miller, 413 U.S. at 24.

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under the more protective Memoirs standard that was in place at

the time of their conduct giving rise to the charges.46 The

trial court disagreed and instructed the jury under the Miller

standards.47 The defendants were convicted, and the Sixth

Circuit affirmed.48

The Supreme Court reversed the convictions. The Court held

that retroactive application of Miller violated the defendants’

due process rights because Miller punished some conduct that had

been innocent under Memoirs.49 The Court stated that the

principle that the Due Process Clause “is based on the notion

that persons have a right to fair warning of that conduct which

will give rise to criminal penalties is fundamental to our

concept of constitutional liberty.”50

Thus, both Bouie and Marks hold that the Due Process Clause

prohibits retroactive application of judicial decisions that make

previously innocent conduct criminal, action falling squarely

within Calder’s first category of prohibited ex post facto laws.

And while no Supreme Court case applies Calder’s fourth category

46
Marks, 430 U.S. at 190-91.
47
See id. at 191.
48
See id.
49
Id. at 194-96.
50
Id. at 191.

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to judicial decisions,51 the Court’s 1990 decision in Collins v.

Youngblood52 called into question the viability of this category

as applied even to legislative acts.

In Youngblood, the defendant was convicted in Texas state

court of aggravated sexual abuse, and the jury imposed punishment

of life imprisonment and a fine of $10,000.53 In his state

habeas petition, the defendant argued that the Texas Code of

Criminal Procedure did not authorize a fine in addition to a term

of imprisonment for his offense, and therefore, under the TCCA’s

decision in Bogany v. State,54 the verdict was void, and he was

entitled to a new trial.55 The state district court granted the

petition, but before it reached the TCCA, a new Texas statute

became effective which allowed an appellate court to reform

improper verdicts without remanding the case for a new trial.56

The TCCA applied this statute to the defendant and denied the

51
In Cummings v. Missouri, 71 U.S. 277 (1866), the Court
relied on Calder’s fourth category to prohibit retroactive
application of changes in the Missouri Constitution, and in Hopt v.
Territory of Utah, 110 U.S. 574 (1884), the Court rejected an ex
post facto challenge to a change in a witness competency statute.
Both of these 19th century cases involve the Ex Post Facto Clause,
not the Due Process Clause. Moreover, both greatly predated
Collins v. Youngblood, 497 U.S. 37 (1990).
52
Collins v. Youngblood, 497 U.S. 37 (1990).
53
Id.
54
Bogany v. State, 661 S.W.2d 957 (1983).
55
Youngblood, 497 U.S. at 39.
56
See id. at 39-40.

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writ.57

The United States Supreme Court held that the TCCA’s

retroactive application of the Texas statute did not violate the

Ex Post Facto Clause.58 The Court initially listed all four of

Calder’s categories of ex post facto laws.59 Later in its

opinion, however, the Court subsequently endorsed an alternative

definition of ex post facto laws from Beazell v. Ohio,60 a prior

Supreme Court decision, which omits Calder’s fourth category.61

The Court reasoned that the Texas statute was not an ex post

facto law under Beazell because it did not “punish as a crime an

act previously committed, which was innocent when done; nor make

more burdensome the punishment for a crime, after its commission;

nor deprive one charged with crime of any defense available

according to law at the time when the act was committed.”62 The

Court expressly acknowledged that “[t]he Beazell definition omits

57
See id.
58
Id. at 51-52.
59
Id. at 42 (quoting Calder v. Bull 3 U.S. 386, 390
(1798)).
60
See Beazell v. Ohio, 269 U.S. 167, 169-70 (1925).
61
Youngblood, 497 U.S. at 42-43. Beazell defines an ex
post facto law as “any statute which punishes as a crime an act
previously committed, which was innocent when done; which makes
more burdensome the punishment for a crime, after its commission,
or which deprives one charged with crime of any defense available
according to law at the time when the act was committed.” 269 U.S.
at 169-70.
62
Id. at 42.

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the reference by Justice Chase in Calder v. Bull [internal

citation omitted] to alterations in the ‘legal rules of

evidence.’”63 The Court then stated that Calder’s fourth

category “was not intended to prohibit the application of new

evidentiary rules in trials for crimes committed before the

changes.”64 The Court concluded that “the Beazell formulation is

faithful to our best knowledge of the original understanding of

the Ex Post Facto Clause.”65

Moreover, in overruling two other Supreme Court cases, Kring

v. Missouri66 and Thompson v. Utah,67 the Youngblood Court

emphasized that not all laws that “alter the situation of a party

to his disadvantage” or “deprive him of a substantial right

involved in his liberty” violate the Ex Post Facto Clause.68 In

Kring, the Court held that the legislative abolition of a law

that provided that a defendant’s plea of guilty to second-degree

63
Id. at 43 n.3 (quoting Calder, 3 U.S. at 390).
64
Id. (citing Hopt v. Utah, 110 U.S. 574, 590 (1884)
(rejecting ex post facto challenge of retroactive application of
statute that declared felons competent to testify as witnesses) and
Thompson v. Missouri, 171 U.S. 380, 386-87 (1898) (rejecting ex
post facto challenge of retroactive application of statute allowing
admission of handwritten documents for use as handwriting
exemplars)).
65
Id. at 43.
66
Kring v. Missouri, 107 U.S. 221 (1883).
67
Thompson v. Utah, 170 U.S. 343 (1898).
68
Youngblood, 497 U.S. at 47-52.

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murder, once accepted, served as an acquittal of the charge of

first-degree murder violated the Ex Post Facto Clause as applied

to the defendant.69 Overruling Kring, the Youngblood Court

reasoned that the change “was not one related to the definition

of the crime, but was based on the law regulating the effect of

guilty pleas.”70 The Youngblood Court continued:

Missouri had not changed any of the elements of the crime of
murder, or the matters which might be pleaded as an excuse
or justification for the conduct underlying such a charge;
it had changed its law respecting the effect of a guilty
plea to a lesser included offense.71

The Youngblood Court also overruled Thompson, which held

that a change in the number of jurors could be applied

retroactively without offending the Ex Post Facto Clause.72 The

Youngblood Court reasoned that although “the right to a jury

trial is obviously a ‘substantial’ one, . . . it has [nothing] to

do with the definition of crimes, defenses, or punishments, which

is the concern of the Ex Post Facto Clause.”73

Youngblood, therefore, cast the viability of Calder’s fourth

category in doubt by endorsing the Beazell definition of ex post

facto laws. Furthermore, in overruling Kring and Thompson, the

69
Kring, 107 U.S. 221.
70
Youngblood, 497 U.S. at 50.
71
Id.
72
Id. at 51-52, overruling Thompson, 170 U.S. 343.
73
Id. at 51.

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Youngblood Court signaled that not all retroactive procedural

changes–even those that affect a defendant’s substantial

rights–will implicate the Ex Post Facto Clause.74

Petitioners rely on Carmell v. Texas,75 in which the Court

invalidated the TCCA’s retroactive application of legislation

that changed the amount of testimony required to convict a sex

offender.76 The new Texas statute at issue in Carmell authorized

conviction of certain sex offenses based on the victim’s

testimony alone, whereas the previous statute required

corroborating evidence as well.77 The Court held that the new

statute constituted an impermissible ex post facto law.78

Petitioners reliance on Carmell is misplaced, however. To

succeed on their habeas petitions, petitioners must demonstrate

that the TCCA’s application of the new limitations rule to them

contradicted clearly established Supreme Court law at the time of

the TCCA’s decision.79 Carmell was decided after the TCCA

74
See id. at 47-52.
75
Carmell v. Texas, 529 U.S. 513 (2000).
76
Id.
77
See id. at 516-20.
78
Id. at 552-53.
79
See Williams v. Taylor, 529 U.S. 362, 412 (2000) (stating
that “clearly established Federal law” as used in the AEDPA “refers
to the holdings, as opposed to the dicta, of [the Supreme Court’s]
decisions as of the time of the relevant state-court decision”)
(emphasis added).

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rendered its decision in this case and, therefore, may not

properly be considered a part of “clearly established” Supreme

Court law at the time of the TCCA’s decision.

In rejecting Proctor and Lemell’s due process claims, the

TCCA stated that the Due Process Clause guarantees that “a state

judicial decision may not operate retroactively if it has the

effect of depriving persons of fair warning of what conduct will

give rise to which criminal penalties.”80 The TCCA found no due

process violation because retroactive application of the

limitations rule “[did] not retroactively alter the definition of

aggravated robbery as it existed in 1982, its range of

punishment, or the substantive defenses that were available with

respect to it.”81

In light of Youngblood and the absence of any Supreme Court

case addressing the due process implications of judge-made

changes to “the legal rules of evidence,” we conclude that the

TCCA’s statement of law--that the Due Process Clause requires

fair notice only of changes in the definition of the crime, its

range of punishment, and the substantive defenses available with

respect to it--did not “contradict” Supreme Court precedent at

the time of the decision. However, we do not reach the question

of whether that statement of law could stand if rendered after

80
Proctor v. State, 967 S.W.2d 840, 845 (Tex. Crim. App.
1998).
81
Id.

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the Supreme Court’s decision in Carmell.

Finally, petitioners argue that Rogers v. Tennessee,82

decided by the Supreme Court just last term, supports their

position. In Rogers, the Supreme Court held that retroactive

application of judge-made law violates the Due Process Clause

only where the change is “unexpected and indefensible by

reference to the law which had been expressed prior to the

conduct in issue.”83 Assuming, without deciding, that the Rogers

test was clearly expressed Supreme Court law as of the date of

the TCCA’s opinion, it would, nevertheless, not affect the

outcome of this case.84 We are not persuaded that Rogers is

concerned with all unexpected changes judges make in the law

because not all unexpected judicial changes result in due process

violations. Rather, only those “unexpected and indefensible”

judicial changes of the type with which the Ex Post Facto Clause

is concerned violate the Due Process Clause.85 For reasons

stated above, we are satisfied that it was not clearly

82
Rogers v. Tennessee, 532 U.S. 451 (2001).
83
Id. at 461 (quoting Bouie v. City of Columbia, 378 U.S.
347, 354 (1964)).
84
Appellant relies on language in Rogers that it derived
this test from Bouie, which of course, was decided before March 11,
1998. See Rogers, 532 U.S. at 461 (quoting Bouie, 378 U.S. at
354).
85
See Calder v. Bull, 3 U.S. 386, 391 (1798) (stating that
“[e]very ex post facto law must necessarily be retrospective; but
every retrospective law is not an ex post facto law”).

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established at the time of the TCCA’s decision that the change in

the Texas limitations rule was a type with which the Ex Post

Facto Clause was concerned. Therefore, we do not reach the next

hurdle, expressed in Rogers, of whether that change was

“unexpected or indefensible by reference to the law which had

been expressed prior to the conduct in issue.”86

C.

We next address whether retroactive application of Texas’

limitations rule “involved an unreasonable application of . . .

clearly-established Federal law, as determined by the Supreme

Court.”87 A state court decision involves an unreasonable

application of Supreme Court precedent if the state court

“correctly identifies the governing legal rule but applies it

unreasonably to the facts of a particular prisoner’s case.”88

The inquiry into reasonableness is an objective one.89 Moreover,

the state court decision may be incorrect without being

“unreasonable.”90 In light of our conclusion that the legal rule

that the TCCA applied was not “contrary to” Supreme Court

precedent, the question now is whether the TCCA applied the rule

86
Id.
87
28 U.S.C. § 2254(d).
88
Williams v. Taylor, 529 U.S. 362, 407-08 (2000).
89
Id. at 410.
90
Id. at 410-11.

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it did in an objectively reasonable manner.

As stated above, the TCCA reasoned that retroactive

application of the limitations rule did not violate petitioners

due process rights because such application did not

“retroactively alter the definition of aggravated robbery as it

existed in 1982, its range of punishment, or the substantive

defenses that were available with respect to it.”91

Shifting the burden of proof on limitations from the

prosecution to the defense does not alter the definition of a

crime in the way understood in Calder and Youngblood.92 In this

case, the new limitations rule does not make conduct criminal

that was previously innocent. As the TCCA stated, the

limitations issue does not change the definition of aggravated

robbery as it existed at the time of Proctor and Lemell’s

conduct.93 Therefore, we hold that the TCCA’s conclusion that

the new limitations rule did not alter the definition of the

crime of aggravated battery was not an unreasonable application

of clearly established Supreme Court precedent.

Furthermore, it follows from Youngblood that the new

limitations rule did not retroactively alter the substantive

91
Proctor v. State, 967 S.W.2d 840, 845 (Tex. Crim. App.
1998).
92
See Calder v. Bull, 3 U.S. 386, 390 (1798); Collins v.
Youngblood, 497 U.S. 37, 43 and n.3 (1990).
93
Proctor, 967 S.W.2d at 845.

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defenses available to petitioners with respect to the crime of

aggravated robbery. Like the change of law at issue in

Youngblood, shifting the burden of proof regarding limitations

does not change “the matters which might be pleaded as an excuse

or justification for the conduct underlying [the] charge.”94

Thus, we conclude that the TCCA’s decision that the new

limitations rule did not alter any substantive defense available

to Proctor and Lemell was also not objectively unreasonable.95

III.

For the reasons stated above, we conclude that the TCCA’s

holding that retroactive application to petitioners of the new

limitations rule did not violate their due process rights was not

“contrary to, or an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States.” Accordingly, the district court’s denial of

habeas relief under § 2254 is hereby affirmed.

AFFIRMED.

94
Youngblood, 497 U.S. at 50 (explaining that the law at
issue in Kring v. Missouri, 107 U.S. 221 (1883), was not an ex post
facto law because it did not change “the matters which might be
pleaded as an excuse or justification for the conduct underlying
such a charge [of murder]”).
95
Finally, we note that the TCCA’s conclusion that the new
limitations rule did not affect the range of punishment to which
Proctor and Lemell were subjected was certainly not unreasonable.

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