United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 27, 2004
_______________________
Charles R. Fulbruge III
No. 03-40527 Clerk
_______________________
FREDDIE JAMES FOREMAN,
Petitioner-Appellant
v.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
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Appeal from the United States District Court
for the Eastern District of Texas
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
In this case we address whether “direct review” for AEDPA
limitations purposes includes Petitioner’s timely-filed state
appeal, which the state court lacked jurisdiction to consider.
The district court concluded that Petitioner’s appeal was not
“direct review” and thus dismissed Petitioner’s habeas petition
as time-barred. We disagree and so reverse.
Background Facts and Procedural History
Acting under an agreement, in 1993 Petitioner-Appellant
Freddie James Foreman pleaded guilty in Texas state court to
possession of a controlled substance. He received deferred
adjudication and was placed on probation (also called “community
1
supervision”) for ten years. In November 1999, the state moved
to revoke Foreman’s probation for delivery of a controlled
substance. Over Foreman’s “not true” plea, on May 15, 2000, the
state court revoked Foreman’s probation and adjudicated him
guilty of the 1993 charge. The court then sentenced Foreman to
27 years in prison.
On June 12, 2000, Foreman timely filed a notice of appeal
with the Texas intermediate appellate court. Foreman filed his
appellate brief on April 23, 2001 in which he argued that the
evidence did not support the trial court’s finding that he had
violated his probation. On July 25, 2001, the appeals court
dismissed Foreman’s appeal for “want of jurisdiction,” concluding
that, under Texas Code of Criminal Procedure article 42.12 §
5(b), the court lacked jurisdiction to consider issues relating
to Foreman’s revocation. Foreman then timely filed a petition
for discretionary review (“PDR”) with the Texas Court of Criminal
Appeals (“CCA”). The CCA denied this petition on October 30,
2001. Subsequently, Foreman filed a state habeas petition on
March 25, 2002; the CCA denied Foreman’s habeas petition on June
12, 2002.
Foreman’s 28 U.S.C. § 2254 habeas petition followed on
August 6, 2002. The district court referred this petition to a
magistrate judge. The magistrate judge recommended dismissing
Foreman’s petition as untimely because, contrary to the
limitations contained in the Antiterrorism and Effective Death
2
Penalty Act (“AEDPA”), it was filed more than one year after his
conviction became “final.” The magistrate judge concluded that
under Texas law, specifically Olivo v. State, 918 S.W.2d 519
(Tex. Crim. App. 1996), the dismissal of Foreman’s appeal for
want of jurisdiction “had the same effect as if the appeal never
existed.” Because he treated the dismissed appeal as if it had
never been filed, the magistrate judge found that Foreman’s
conviction became final for habeas limitations purposes on June
14, 2000 – 30 days after Foreman’s parole was revoked. Under
this calculation, Foreman’s habeas limitations period expired one
year later. Because it was filed after that date, Foreman’s
state habeas did not toll the limitations period. Finding the
petition therefore untimely, the magistrate judge recommended
dismissing Foreman’s petition. Foreman objected to the
magistrate judge’s report, but the district court accepted it
after conducting a de novo review. The district court dismissed
Foreman’s habeas petition as time-barred, but granted Foreman a
Certificate of Appealability on the time-bar issue. We review
the district court’s decision de novo. See Giesberg v. Cockrell,
288 F.3d 268, 270 (5th Cir. 2002).
Did the district court err by dismissing Foreman’s habeas
petition as time-barred?
The issue before us involves the classification and effect
of Foreman’s state appeal. Therefore, to evaluate the parties’
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arguments, we must first examine Foreman’s state proceedings. In
his state appeal, Foreman challenged both the determination that
he violated his probation and the related adjudication of guilt.
This adjudication occurred under TEX. CODE CRIM. PROC. art. 42.12,
which provides, in relevant part:
On violation of a condition of community supervision
imposed under Subsection (a) of this section, the
defendant may be arrested and detained as provided in
Section 21 of this article. The defendant is entitled to
a hearing limited to the determination by the court of
whether it proceeds with an adjudication of guilt on the
original charge. No appeal may be taken from this
determination . . . .
TEX. CODE CRIM. PROC. art 42.12 Sec. 5(b).
Texas courts have interpreted this appeal provision to mean
that a defendant “may not raise on appeal contentions of error in
the adjudication of guilt process.” Connolly v. State, 983
S.W.2d 738, 741 (Tex. Crim. App. 1999). Given this law, the
parties agree that the Texas court correctly dismissed Foreman’s
appeal. However, the parties dispute what conclusions can be
drawn from this dismissal – specifically whether, for AEDPA
limitations, an appeal can be considered “direct review” when the
state court had no jurisdiction to review that appeal.
AEDPA provides that a petitioner may file a habeas petition
within one year of “the date on which the judgment became final
by the conclusion of direct review or the expiration of the time
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for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).1 This
provision supplies two alternate methods under which a conviction
can become final: direct review can end or the time to pursue the
direct review can expire. Thus, because it triggers the
limitations period, the date a judgment becomes final is often
critical to a petitioner’s federal habeas petition.
The date is critical here. As the district court noted, if
Foreman’s appeal to the state intermediate court and his PDR to
the CCA are considered “direct review,” then his habeas petition
is timely. If, on the other hand, his state appeal is excluded,
the limitations period began running thirty days after the state
court judgment, when his time to appeal ran out.2 Therefore,
whether Foreman’s appeal was “direct review” determines when his
judgment became final and whether his habeas petition was timely.
Direct review, which includes a petition for certiorari to
the Supreme Court, occurs “when the Supreme Court either rejects
the petition for certiorari or rules on its merits.” Roberts v.
Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). If no petition is
filed, then we examine the second method of creating finality,
“the expiration of the time for seeking such review.” Id. If a
1
There are additional methods of starting the limitations
period. See 28 U.S.C. § 2244(d)(1). The parties agree that only
finality is relevant in this case.
2
The parties agree that Foreman could have appealed other
aspects of his conviction, such as his sentence.
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criminal defendant has pursued his direct appeal through the
highest state court, then this period includes the 90 days for
filing a petition for certiorari to the Supreme Court. Id. If
not, then it includes the time for seeking further state-court
direct review. Id. At the conclusion of these periods, the
judgment becomes final.
When addressing finality, we have previously discussed the
intersection of AEDPA and state law. In so doing, we confirmed
that AEDPA, not state law, determines when a judgment is final
for federal habeas purposes. Roberts, 319 F.3d at 694. In
Roberts v. Cockrell, we held that the petitioner’s judgment
became final when the time ran out for him to file a PDR, not the
later date when the appeals court issued its mandate. Id.
Although under Texas law the judgment was not final until the
court issued its mandate, we concluded that the Texas rules did
not control AEDPA review. Id. Thus, the petitioner’s conviction
became final for AEDPA purposes before his conviction was final
under state law. Id. at 694-95. We noted that we did not look
to state law to make this decision because AEDPA provides its own
definition of finality. Id. at 694.
Yet, as even the Roberts court conceded, some consideration
of state law is inevitable when analyzing ADEPA limitations.
Roberts, 319 F.3d at 693-94; see also Salinas v. Dretke, 354 F.3d
425 n.5 (5th Cir. 2004). In Salinas v. Dretke, the CCA granted
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the petitioner the right to file an out-of-time PDR. Salinas,
354 F.3d at 428. Under state law, granting this right “restores
the petitioner to the position he was in when he first possessed
the right to petition for discretionary review. A defendant who
still has the right to file a PDR is considered to be in the
midst of the direct review process.” Id. at 429 (footnote
omitted). The question before us in Salinas was whether the
CCA’s grant of this right to the petitioner affected his AEDPA
time limits. We concluded that the effect of the CCA’s actions
depended on whether the CCA awarded this relief as part of the
direct review process or as part of the collateral review
process. Id. at 430. If the CCA’s grant was part of direct
review, then the AEDPA clock did not begin to run until this
direct review was complete. Id. To determine whether the CCA
could have granted this relief as part of direct review or could
only have granted it under collateral review, we necessarily
examined state law. Id. at 430 n.5. We determined that the CCA
could only have granted this relief on collateral review. Id. at
430. Based on this determination, we concluded that, although
the pendency of the out-of-time PDR, like any other collateral
review, would toll the limitations period, the CCA’s grant of
permission to file a late PDR did not undo the running of AEDPA
deadlines. Id. In other words, in Salinas we held that,
although a PDR is part of the direct review process, the grant of
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permission to file a late PDR is not part of direct review.
Thus, the grant did not affect the finality of petitioner’s
conviction for AEDPA purposes. Id. at 431. In sum, we required
an examination of state law (to determine whether particular
relief was available on direct appeal or only as part of the
state habeas proceeding), but were not controlled by the effects
of the state proceeding (namely, that under state law the
petitioner had been restored to the position of someone on direct
review).3
We also are aided by Artuz v. Bennett, 531 U.S. 4 (2000), a
Supreme Court case addressing a fairly analogous situation under
New York law. Artuz addressed § 2244's tolling provision, which
tolls the limitations period for the time that a “properly filed
application for State post-conviction or other collateral review”
was pending. Id. at 5 (quoting 28 U.S.C. § 2244(d)(2)). In
Artuz, the state argued that this provision did not apply to
3
These cases resolve one of Respondent’s contentions about
the state court’s lack of jurisdiction. Citing Olivo v. State,
918 S.W.2d 519 (Tex. Crim. App. 1996), Respondent originally
argued that state courts treat an appeal filed without
jurisdiction as if it had never been filed and that, under AEDPA,
federal courts are obligated to give the same effect to a
jurisdictionally-deficient appeal. Regardless of the validity of
Respondent’s Olivo reading, we note that Salinas mandates that we
are not bound by the state court’s view of an appeal. Further,
in granting Foreman’s Certificate of Appealability, the district
court stated that, “an argument may be made that ‘finality’ for
purposes of 28 U.S.C. § 2244(d)(1)(A) should not hinge on how
Texas courts decide an appeal but on the conclusion of the direct
review process or the expiration of the time for seeking review.”
When expressed this way, the issue is controlled by Roberts.
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Artuz’s attempts to obtain state post-conviction relief because
his state filing contained claims that were procedurally barred
under New York law. Id. at 7. As support, the state argued that
an application was not properly filed “unless it complies with
all mandatory state-law procedural requirements that would bar
review of the merits of the application.” Id. at 8.
The Supreme Court rejected this argument. Instead, the
Court distinguished an analysis of when a petition was properly
filed from an analysis of the petition’s merits:
an application is "properly filed" when its delivery and
acceptance are in compliance with the applicable laws and
rules governing filings. These usually prescribe, for
example, the form of the document, the time limits upon
its delivery, . . . the court and office in which it must
be lodged, and the requisite filing fee. . . . In some
jurisdictions the filing requirements also include, for
example, preconditions imposed on particular abusive
filers . . . or on all filers generally. . . . But in
common usage, the question whether an application has
been "properly filed" is quite separate from the question
whether the claims contained in the application are
meritorious and free of procedural bar.
Id. at 8-9 (citations and footnote omitted).
Here, Respondent asks us to read the phrase “valid” into
AEDPA’s “direct review” language by asserting that direct review
can only mean jurisdictionally-valid review. We decline to reach
this conclusion. First, the reasoning in Artuz cautions against
reading phrases or merits-related requirements into AEDPA’s
language. Second, Salinas encourages us to look to the actual
state processes that a petitioner has used. So, following
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Salinas, we ask whether Foreman engaged the Texas direct review
process. Because Foreman filed a timely appeal in the
intermediate court and timely filed a PDR, we conclude that he
participated in direct review. Foreman’s conviction thus became
final for AEDPA purposes 90 days after the CCA denied his PDR.
See Roberts, 319 F.3d at 694.
Other considerations also support this result. First, the
parties agree that Foreman could have appealed some aspects of
his case, such as his sentence. It would be unnecessarily
complicated to make a petitioner’s AEDPA timeline depend on the
content of his state appellate briefs. Additionally, a ruling
that Foreman’s appeal was not direct review would create an
incentive for petitioners to file premature federal habeas
petitions. For example, in this case, under Respondent’s theory,
Foreman’s AEDPA period had run before the intermediate appellate
court dismissed his appeal. Ruling as Respondent requests, then,
would give prisoners like Foreman reason to file premature
federal habeas petitions for fear of the consequences of an
appellate court dismissing an appeal for want of jurisdiction.
We see no reason to create such an incentive, which runs counter
to AEDPA’s “purpose to further the principles of comity,
finality, and federalism.” Williams v. Taylor, 529 U.S. 420, 436
(2000).
Thus, we simply ask whether Foreman filed a timely appeal in
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the state court system. We conclude that he did and that his
state appeal constituted direct review. Therefore, Foreman filed
his habeas petition within AEDPA’s limitations period. Our
holding here is limited – merely that Foreman’s timely-filed
appeal was direct review. Accordingly, we reverse the district
court’s dismissal of Foreman’s petition as time-barred and remand
the case to the district court to consider its merits.
REVERSED AND REMANDED.
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