United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 26, 2005
)))))))))))))))))))))))))) Charles R. Fulbruge III
Clerk
No. 03-40927
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ROBERT F. CALDWELL,
Petitioner–Appellant,
vs.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent–Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
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No. 03-20900
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PETE RONALD MARTINEZ,
Petitioner–Appellant,
vs.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent–Appellee.
Appeal from the United States District Court
for the Southern District of Texas
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No. 04-10062
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DAVID FRANKLIN BECK,
Petitioner–Appellant,
vs.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent–Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Before WIENER, DeMOSS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
The issue in this case is whether orders of deferred
adjudication community supervision1 and straight probation are
final judgments for purposes of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) one-year statute of
limitations.2 This is a question of first impression in this
circuit. We hold that orders of deferred adjudication and
straight probation are final judgments for purposes of AEDPA’s
one-year statute of limitations. For the reasons that follow, we
1
Throughout this opinion, the term “probation” is used
interchangeably with the term “community supervision.”
2
28 U.S.C. § 2244(d)(1).
2
affirm the judgments of the district courts.
I
The district courts dismissed Petitioners-Appellants’ habeas
corpus petitions on procedural grounds. Thus, only the
procedural posture of the three cases are relevant to the
question before us.
A. Robert Franklin Caldwell
Robert Franklin Caldwell was indicted for the felony offense
of aggravated assault. He pleaded guilty to the charges, and on
June 17, 1998, the state trial court placed Caldwell on ten years
of deferred adjudication probation. An order of deferred
adjudication, by definition, defers an adjudication of guilt or
innocence. Pursuant to the order of deferred adjudication,
Caldwell was placed on probation for a period of ten years.
Caldwell did not seek direct review of the deferred adjudication
order.
Caldwell subsequently violated the terms of his probation,
and on April 28, 2000, the state trial court revoked his
probation. Pursuant to his earlier guilty plea, the state trial
court issued a judgment finding Caldwell guilty of aggravated
assault. Caldwell was sentenced to twenty-five years in prison.
He timely appealed to the court of appeals, which dismissed the
portion of his appeal regarding the state trial court’s judgment
to proceed with adjudication for lack of jurisdiction. The court
3
of appeals affirmed the remainder of the judgment, issuing a
mandate in November of 2001.3
Caldwell filed his second4 state application for habeas
corpus relief challenging his conviction in February 2002. The
Texas Court of Criminal Appeals denied habeas relief without
written order. On September 5, 2002, Caldwell filed a petition
for federal habeas relief. The magistrate judge found that
AEDPA’s one-year statute of limitations had began to run on July
17, 1998, thirty days after the trial judge entered the order of
deferred adjudication community supervision, and expired on July
17, 1999. The district court adopted the magistrate judge’s
report and recommendation and dismissed Caldwell’s petition as
untimely.
Caldwell timely filed a notice of appeal. The district
court granted Caldwell a certificate of appealability to this
court on whether the district court erred in determining that all
issues relating to Caldwell’s guilty plea and the deferred
3
A decision becomes final thirty days from the date the
judgment is issued, where thirty days is the period for filing a
petition for discretionary review in state court. “[T]he
issuance of the mandate by the state court of appeals is of no
consequence for the purposes of § 2244(d)(1)(A).” Roberts v.
Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003).
4
Caldwell filed his first state application for habeas
corpus relief on June 22, 2000. On August 16, 2000, the Texas
Court of Criminal Appeals dismissed his first habeas application
due to the fact that his direct appeal was still pending. This
state application would have tolled the one-year statute of
limitations period had it been filed prior to its expiration.
4
adjudication community supervision became final thirty days after
the order was imposed, rather than thirty days after the formal
adjudication of guilt.
B. Pete Ronald Martinez
Pete Ronald Martinez was indicted for the felony offense of
aggravated robbery. He pleaded guilty to aggravated robbery with
a deadly weapon on January 22, 1998. The state trial court found
sufficient evidence substantiating Martinez’s guilt and placed
him on ten years deferred adjudication community supervision.
Martinez violated the terms of his community supervision, and on
August 28, 2000, the state trial court adjudicated Martinez
guilty pursuant to his earlier guilty plea. The state trial
court sentenced him to forty-five years imprisonment.
Martinez filed a motion for a new trial in September 2000.
The trial court denied the motion for a new trial, and Martinez
appealed, complaining of the effectiveness of his attorney at the
original plea hearing. The court of appeals dismissed the appeal
in October 2001 for lack of jurisdiction, reasoning that
Martinez’s ineffective assistance claim had to be raised in an
appeal from the imposition of deferred adjudication probation.5
Martinez filed a state writ of habeas corpus in July 2002.
The Texas Court of Criminal appeals denied the application
without written order. Martinez filed his federal writ petition
5
See discussion Part II.A infra.
5
on December 5, 2002, raising issues relating to his guilty plea.
Unlike the magistrate judge’s determination in Caldwell’s case,
the federal district court concluded that AEDPA’s one-year
statute of limitations began to run from the judgment
adjudicating guilt, entered after the trial court revoked
Martinez’s deferred adjudication community supervision. Thus,
according to the district court’s order, the AEDPA one-year
limitations period began to run thirty days after the assessment
of the forty-five year sentence. However, the district court
found that Martinez’s petition was nevertheless time-barred since
it concluded that Martinez’s state court application for habeas
relief did not toll AEDPA’s statute of limitations.6
Martinez timely filed his notice of appeal. The district
court granted Martinez a certificate of appealability on whether
his conviction became final after the expiration of the time for
appealing his guilty plea and the deferred adjudication, or if
his conviction became final after the expiration of time for
appealing the state court’s judgment adjudicating guilt.
6
Because under the district court’s order, Martinez’s
federal habeas petition would have been time barred regardless of
when AEDPA’s statute of limitations began to run, respondent
argues that Martinez’s claim is moot. However, in Foreman v.
Dretke, we held that a timely appeal to state court, dismissed
for want of jurisdiction, tolls AEDPA’s statute of limitations.
383 F.3d 336, 340 (5th Cir. 2004). Therefore, whether the
statute of limitations began to run at the time the order
deferring adjudication was issued or at the time Martinez’s guilt
was adjudicated is outcome determinative in Martinez’s case.
6
C. David Franklin Beck
David Franklin Beck was charged with sexual assault of a
child. Beck pleaded not guilty but was convicted by a jury.
Pursuant to the jury’s recommendation, the trial court sentenced
Beck to ten years community supervision on February 23, 2000. In
February 2001 the court of appeals affirmed Beck’s conviction.
Beck violated the terms of his probation, and in May of
2001, the state moved to revoke Beck’s probation. The trial
court revoked Beck’s probation on June 29, 2001 and sentenced him
to ten years confinement. Beck gave timely notice of appeal from
the judgment revoking his community supervision but withdrew the
notice of appeal in early March 2002.
Subsequently, on March 12, 2002, Beck filed an application
for state habeas relief, pursuant to article 11.07 of the Texas
Code of Criminal Procedure. The Texas Court of Criminal Appeals
denied Beck’s application for writ of habeas corpus without
written order in August 2002. Beck filed a petition for writ of
habeas corpus in federal district court on October 8, 2002. In
June 2003, the magistrate judge recommended that Beck’s petition
be denied as barred by the limitations period. The magistrate
judge agreed with the State that Beck’s conviction became final
on March 9, 2001, the date on which the time to file a petition
for discretionary review in the Texas Court of Criminal Appeals
expired. According to the magistrate judge, AEDPA’s statute of
7
limitations period expired on March 9, 2002, three days before
Beck filed his state habeas application. The district court
adopted the findings and recommendation of the magistrate judge.
Beck gave timely notice of appeal from the judgment entered
by the district court. The district court granted a certificate
of appealability to Beck on the issue of when a conviction and
imposition of a probationary sentence, which is subsequently
revoked, is final for purposes of AEDPA’s one-year statute of
limitations period.
II
We review a district court’s denial of a habeas application
on procedural grounds de novo. Larry v. Dretke, 361 F.3d 890,
893 (5th Cir. 2004); Emerson v. Johnson, 243 F.3d 931, 932 (5th
Cir. 2001).
AEDPA procedure governs these cases because each habeas
petition was filed pursuant to 28 U.S.C. § 2254, after AEDPA’s
effective date.7 Hughes v. Dretke, 412 F.3d 582, 588 (5th Cir.
2005). AEDPA requires that “an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court” be filed within one-year of “the date on which the
judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. §
7
AEDPA became effective on April 24, 1996. See Martinez v.
Dretke, 404 F.3d 878, 884 (5th Cir. 2005).
8
2244(d)(1).
In the case of Petitioners Caldwell and Martinez, the issue
is whether an order of deferred adjudication following a guilty
plea is a final judgment upon the expiration of the time for
seeking direct review, for purposes of section 2244, when the
applicant only challenges issues pertaining to his guilt. If an
order of deferred adjudication is a final judgment for this
purpose, then Petitioners’ habeas petitions are untimely because
they were filed more than one year after the orders of deferred
adjudication issued. If an order of deferred adjudication is not
a final judgment for purposes of section 2244, however, then the
judgment adjudicating guilt triggered the statute of limitations,
and Petitioners’ habeas applications are timely.
In Petitioner Beck’s case, the issue is whether a judgment
entered pursuant to a guilty verdict that results in community
supervision is a final judgment upon the expiration of the time
for seeking direct review, for purposes of section 2244, when the
applicant only challenges issues pertaining to his guilt. If an
order imposing straight community supervision is final for
purposes of section 2244, then Beck’s habeas petition is
untimely. However, if an order imposing community supervision is
not a final judgment for these purposes, then the statute of
limitations began to run when Beck’s probation was revoked. In
that case, his habeas petition is timely.
The district courts within the Fifth Circuit are split as to
9
whether an order of deferred adjudication constitutes a final
judgment for purposes of section 2244. See Wilkinson v.
Cockrell, 240 F. Supp. 2d 617, 620-22 (N.D. Tex. 2002). Many
have concluded that an order of deferred adjudication is not a
final judgment and therefore does not trigger AEDPA’s statute of
limitations. These courts have held that the judgment
adjudicating guilt is the relevant state-court judgment for
purposes of 28 U.S.C. § 2244(d)(1). In those instances, the
courts have reasoned that either (1) an order of deferred
adjudication is not a final judgment because it is not a
judgment; or (2) an order of deferred adjudication is not a final
conviction because there has been no adjudication of guilt.8 By
contrast, some district courts have held that an order of
8
See, e.g., Samford v. Dretke, No. 3:03-CV-1969-M, 2005 WL
1017872, at *2 (N.D. Tex. Apr. 27, 2005) (holding that the trial
court’s Deferred Adjudication Order was not a judgment under
Texas law, but merely an appealable order); Daugherty v. Dretke,
No. 3:01-CV-0202-N, 2003 WL 23193260, at *6-8 (N.D. Tex. Dec. 24,
2003)(finding that an order of deferred adjudication is not a
judgment for purposes of 28 U.S.C. § 2244(d)); Standridge v.
Cockrell, No. 4:02-CV-462-Y, 2002 WL 31045977, at *3 (N.D. Tex.
Sept. 10, 2002)(stating that placement on deferred adjudication
probation is not a final conviction because there has been no
adjudication of guilt); Jamme v. Cockrell, No. 3:01-CV-1370-L,
2002 WL 1878403, at *2-3 (N.D. Tex. Aug. 12, 2002) (holding that
deferred adjudication probation is not a final judgment for
purposes of 28 U.S.C. § 2244); Cutrer v. Cockrell, No.
3:01-CV-0841-D, 2002 WL 1398558, at *2-5 (N.D. Tex. June 26,
2002) (finding that an order of deferred adjudication probation
is not a judgment within the meaning of 28 U.S.C. § 2244 or state
law).
10
deferred adjudication or straight probation9 is a final judgment
that triggers the running of the statute of limitations under
section 2244.10
A. Is an order of deferred adjudication a judgment for purposes
of section 2244?
First, we address whether an order deferring adjudication
community supervision is a judgment for purposes of section 2244.
Petitioners Caldwell and Martinez contend that we should look to
Texas state law to determine the meaning of the term “judgment”
in section 2244. According to Texas state law, “A judgment is
the written declaration of the court signed by the trial judge
and entered of record showing the conviction or acquittal of the
defendant.” TEX. CRIM. PROC. CODE ANN. art. 42.01.11 Therefore,
9
A judgment of straight probation, as in Petitioner Beck’s
case, is a “judgment” under both federal and Texas state law
since there is a formal adjudication of guilt. See discussion
Part II.A infra. However, Beck argues that an order of probation
is not final for purposes of section 2244(d)(1).
10
See Wilkinson, 240 F. Supp. 2d at 621-22(“There is no
requirement in § 2244(d)(1)(A) that the final judgment
contemplated by the statute be one that makes a determination of
guilt.”); Jiminez v. Cockrell, No. 4:03-CV-0090-Y, 2003 WL
21321256, at *4 (N.D. Tex. May 19, 2003)(holding that “the
statute of limitations begins for purposes of § 2244(d)(1)(A)
when a Texas state court deferred adjudication order becomes
final by the conclusion of direct review or the expiration of the
time for seeking such review, notwithstanding the fact that there
has been no determination of guilt.”); DeLeon v. Cockrell, No.
5:01-CV-231-C, 200 U.S. Dist. LEXIS 10612, at *4 (N.D. Tex. June
12, 2002)(stating petitioner’s conviction became final thirty
days after he was sentenced and placed on probation).
11
The portions of this statute discussed are those prior to
the amendments effective on September 1, 2005.
11
among other “typical trappings of a Texas judgment,”12 a final
judgment must contain a conviction or acquittal of the defendant.
Id. Caldwell and Martinez argue that because a deferred
adjudication, by definition, defers an adjudication of guilt or
innocence, such an order is not a judgment under Texas law,13 and
consequently should not be a judgment under section 2244.
The plain language of AEDPA, as well as its underlying
purpose, lead us to disagree. In interpreting AEDPA, our task is
to construe what Congress has enacted, beginning with the
language of the statute. Duncan v. Walker, 533 U.S. 167, 172
(2001). It is an elementary canon of statutory construction that
we must give a term consistent meaning throughout an act. Morse
v. Republican Party, 517 U.S. 186, 249-50 (1996). In
interpreting the term “judgment,” we observe that the term should
be construed, if possible, consistently throughout AEDPA. See
Gustafson v. Alloyd Co., 513 U.S. 561, 568 (1995).
Petitioners’ interpretation of the phrase “person in custody
pursuant to the judgment of a State court” would result in two
12
Cutrer, 2002 WL 1398558, at *3. Features of a Texas
judgment also include a section addressing the proper punishment,
the term of sentence, the date the judgment was entered, the date
the sentence was imposed, etc. See TEX. CRIM. PROC. CODE ANN. art.
42.01; Cutrer, 2002 WL 1398558, at *3.
13
“The whole point of [the deferred adjudication] statute
is to avoid having to formally adjudicate the defendant’s guilt
unless and until he demonstrates that he cannot abide by the
terms of probation set by the court.” Ex parte Laday, 594 S.W.2d
102, 104 (Tex. Crim. App. 1980).
12
different meanings within AEDPA. See Shelby v. Bartlett, 391
F.3d 1061, 1064 9th Cir. 2004). Section 2254 of AEDPA confers
jurisdiction on federal courts to hear habeas petitions by those
“in custody pursuant to the judgment of a State court.”14
Therefore, a person, like the Petitioners, who wishes to bring a
habeas petition pursuant to section 2254 in federal court, must
be in custody pursuant to the judgment of a state court. Like
section 2254, section 2244(d)(1) of AEDPA imposes a one-year
statute of limitations on an application for writ of habeas
corpus by a “person in custody pursuant to the judgment of a
State court.” If as Petitioners suggest, an order deferring
adjudication is not a judgment pursuant to a state court for
purposes of section 2244, then a habeas petition under AEDPA
section 2254 would be brought by a “person in custody pursuant to
the judgment of a State court” for purposes of habeas
jurisdiction, but would not be brought by a “person in custody
pursuant to the judgment of a State court” for purposes of
AEDPA’s limitation period.15 See id.; Kimbrell v. Cockrell, 311
14
See 28 U.S.C. § 2254(a) (“The Supreme Court, a Justice
thereof, a circuit judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court.”).
15
Petitioners do not argue that there is no federal habeas
jurisdiction to hear petitions brought by those challenging
custody pursuant to an order deferring adjudication before guilt
has been adjudicated. In such a situation, there is jurisdiction
under section 2254. See, e.g., Sawyer v. Sandstrom, 615 F.2d
311, 313 n.1 (5th Cir. 1980)(stating that a petitioner whose
13
F.3d 361, 363 (5th Cir. 2002). This inconsistency implies that
Petitioners are incorrect, and an order deferring adjudication is
a judgment for purposes of triggering AEDPA’s limitation period.
Although an order of deferred adjudication is not a judgment
under Texas law, it is a judgment under the relevant federal law.
The Federal Rules of Civil Procedure explicitly state that they
are applicable to habeas corpus proceedings. FED. R. CIV. P. 81.16
In addition, the Rules Governing Section 2254 Cases, Rule 11,
states that “[t]he Federal Rules of Civil Procedure, to the
extent that they are not inconsistent with any statutory
provisions or these rules, may be applied to a proceeding under
these rules.” The Federal Rules of Civil Procedure define
“judgment” as including “a decree or any order from which an
appeal lies.” FED. R. CIV. P. 54; see also BLACK’S LAW DICTIONARY
(8th ed. 2004)(“The term judgment includes an equitable decree
sentence had been stayed was eligible for federal habeas relief);
Barry v. Bergen County Probation Dept., 128 F.3d 152, 159-61 (3d
Cir. 1997)(holding that petitioner sentenced to 500 hours of
community service was eligible to petition for habeas relief);
Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (stating
petitioner on probation eligible for habeas relief under section
2254(a)).
16
These rules are applicable to proceedings for admission
to citizenship, habeas corpus, and quo warranto, to the
extent that the practice in such proceedings is not set
forth in statutes of the United States, the Rules
Governing Section 2254, or the Rules governing Section
2255 Proceedings, and has heretofore conformed to the
practice in civil actions.
FED. R. CIV. P. 81.
14
and any order from which an appeal lies.”).
An appeal lies from both an order of deferred adjudication
and an order of straight probation. In Manuel v. State, the
Texas Court of Criminal appeals held that a defendant placed on
deferred adjudication community supervision, like defendants
placed on regular community supervision, may appeal issues
relating to the original plea proceedings when the deferred
adjudication community supervision is first imposed. 994 S.W.2d
658, 661-62 (Tex. Crim. App. 1999). In fact, the Manuel court
stated that a defendant on regular or deferred community
supervision may only appeal issues relating to the original plea
proceedings when deferred adjudication community supervision is
originally imposed. Id. (“We have long held that a defendant
placed on ‘regular’ community supervision may raise issues
relating to the conviction, such as evidentiary sufficiency, only
in appeals taken when community supervision is originally
imposed. . . . we now hold that this rule also applies in the
deferred adjudication context.”). Thus, according to the plain
meaning of the word “judgment,” an order of deferred adjudication
community supervision, in addition to an order of straight or
regular community supervision, is a judgment for purposes of
section 2244.
This result is consistent with Congress’s stated legislative
intent in enacting AEDPA. The Committee of Conference explained
15
that the intent of the habeas corpus reforms was to “curb the
abuse of the statutory writ of habeas corpus,” and “address
problems of unnecessary delay.” H.R. CONF. REP. NO. 104-518, at
111 (1996). Permitting a petitioner to bring a habeas corpus
petition challenging an order of probation as many as ten years
after he was originally placed on probation would be contrary to
congressional intent.17 The Supreme Court has recognized that
“AEDPA’s purpose [is] to further the principles of comity,
finality, and federalism.” Williams v. Taylor, 529 U.S. 420, 436
(2000); Duncan v. Walker, 533 U.S. 167, 178 (2001). Section
2244(d)(1) “reduces the potential for delay on the road to
finality by restricting the time that a prospective federal
habeas petitioner has in which to seek federal habeas review.”
Duncan, 535 U.S. at 179. The result we reach today is consistent
with this purpose.
B. Is a judgment of deferred adjudication or straight probation
final for purposes of section 2244?
Second, we address whether an order of deferred adjudication
or straight probation is a final judgment for purposes of section
2244. We conclude that it is. In Roberts v. Cockrell, we held
that federal law controls when a state conviction becomes final
for purposes of section 2244(d)(1)(A). 319 F.3d 690, 694 (5th
17
Texas law permits a judge to impose deferred adjudication
community supervision for up to ten years in a felony case. TEX.
CRIM. PROC. CODE ANN. art. 42.12 § 5(a).
16
Cir. 2003). We stated that “although we are sensitive to state
law when determining whether a motion is still pending, federal
law still determines the time limits under AEDPA.” Id. at 693
(internal quotations omitted); see also Lookingbill v. Cockrell,
293 F.3d 256, 262 (5th Cir. 2002) (stating that federal law
determines the time limits under AEDPA); Foreman, 383 F.3d at 339
(“Texas rules [do] not control AEDPA reivew.”). We noted that
the language of section 2244(d)(1)(A) provides that a decision
becomes final “by the conclusion of direct review or the
expiration of the time for seeking such review.” Id.
Petitioner Beck argues, however, that his conviction was not
final under state law until his probation was revoked and his
appeal from the revocation was dismissed. Beck contends that
according to article 11.07 of the Texas Code of Criminal
Procedure, he was not eligible under state law to collaterally
attack his conviction until the felony judgment, from which he
was seeking relief, was final under Texas law.18 Thus, Beck
maintains that he was unable to exhaust state remedies until his
probation was revoked and his conviction became final under state
law.19 As the argument goes, an order imposing probation cannot
18
Habeas relief under article 11.07 requires a final
conviction. Under Texas law, probation is not a final conviction
for these purposes. See Ex parte Renier, 734 S.W.2d 349, 351
(Tex. Crim. App. 1987).
19
28 U.S.C. § 2254(b)(1) states that “An application for a
writ of habeas corpus on behalf of a prisoner in custody pursuant
17
be final for purposes of section 2244 since, in that instance,
state law precluded Beck from achieving the prerequisite
requirements to bringing a federal habeas petition within the
federal statute of limitations.
However, although Beck could not pursue collateral review
under article 11.07, he had an available remedy for habeas relief
under Texas Code of Criminal Procedure articles 11.05, 11.08, and
11.23. See Ex parte Twyman, 716 S.W.2d 951, 952 (Tex. Crim. App.
1986); Ex parte Martell, 901 S.W.2d 754, 754 (Tex. Crim. App.
1995). Thus, while on probation, Beck was entitled to
collaterally challenge any allegedly unlawful restraint in the
trial court where he was convicted. Twyman, 716 S.W.2d at 952.
We conclude that, while on probation, Beck was able to exhaust
state remedies before AEDPA’s limitations period expired.
Therefore, we see no reason to depart from the definition of
finality provided in section 224(d)(1)(A).20 The judgment
imposing his probation became final by the conclusion of direct
review or the expiration of the time for seeking such review.
to the judgment of a State court shall not be granted unless it
appears that–the applicant has exhausted the remedies available
in the courts of the State.”
20
In Salinas v. Dretke, we held that state law controls
whether an out-of-time petition for discretionary review is part
of Texas’s direct or collateral review process. 354 F.3d 425,
430-31 (5th Cir. 2004). However, in that case, we explicitly
stated that we must look to federal law to determine the date an
event has occurred, such as the date a judgment becomes final.
Id. at 430 n.5.
18
III
Petitioner Caldwell was sentenced to ten years deferred
adjudication probation on June 17, 1998. Caldwell did not seek
review of the deferred adjudication order. Under Texas law, a
defendant must file a notice of appeal “within 30 days after the
day sentence is imposed or suspended in open court.” TEX. R. APP.
P. 26.2(a)(1). Thus, Caldwell’s deferred adjudication became
final for purposes of section 2244(d)(1)(A) on July 17, 1998, and
the statute of limitations began to run on that date. Petitioner
Martinez was placed on community supervision by an order
deferring adjudication of guilt on January 22, 1998. This order
became final on February 23, 1998.21 Therefore, the statute of
limitations set forth in section 2244 began to run on that date.
Finally, Petitioner Beck was placed on community supervision
on February 23, 2000. Beck appealed his conviction, and on
February 7, 2001, the court of appeals affirmed his conviction.
Beck did not seek a rehearing with the court of appeals or file a
petition for discretionary review with the Texas Court of
Criminal Appeals. Therefore, under the federal definition of
finality, Beck’s conviction became final on March 9, 200122 for
21
January 22, 1998, thirty days from January 22, 1998, fell
on Saturday, February 21, 1998. Thus, Petitioner’s conviction
became final the following Monday, February 23, 1998.
22
See TEX. R. APP. P. 68.2(a) (“The petition [to the Texas
Court of Criminal Appeals] must be filed within 30 days after
either the day the court of appeals' judgment was rendered or the
day the last timely motion for rehearing was overruled by the
19
purposes of AEDPA.23 Cockrell, 319 F.3d at 694.
IV
Because an order of deferred adjudication community
supervision is a final judgment within the plain meaning of AEDPA
section 2244, the one-year statute of limitations, for
challenging substantive issues of the orders of deferred
adjudication, began to run when the order deferring adjudication
became final.24 Similarly, because a judgment imposing probation
is a final judgment within the plain meaning of AEDPA section
2244, the one-year statute of limitations for challenging
substantive issues relating to a judgment of jury verdict of
court of appeals.”).
23
Beck asks this court to equitably toll AEDPA’s statute of
limitations. The respondent argues that a certificate of
appealability was not issued on this question. We find that with
respect to Petitioner Beck, the issue of equitable tolling is
fairly incorporated in the question before this court. We review
a decision to invoke equitable tolling for abuse of discretion.
U.S. v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). We have
recognized that the one-year statute of limitations period of
section 2244(d)(1) may be equitably tolled. Davis v. Johnson,
158 F.3d 806, 811 (5th Cir. 1998). However, equitable tolling is
permitted only “in rare and exceptional circumstances.” Id.
Equitable tolling will not be granted if an applicant failed to
diligently pursue his rights. Larry v. Dretke, 361 F.3d 890, 897
(5th Cir. 2004). Although “we must be cautious not to apply the
statute of limitations too harshly,” here, there are no
exceptional circumstances. U.S. v. Patterson, 211 F.3d 927, 931
(5th Cir. 2000). Beck simply failed to challenge any unlawful
restraint in the trial court where he was convicted within the
prescribed time period.
24
Our holding is limited to instances where a petitioner
challenges substantive issues relating to an original order of
deferred adjudication probation or straight probation.
20
guilt and probation, began to run when the judgment imposing
probation became final. Consequently, each Petitioner’s habeas
corpus petition is time-barred.
V
We affirm the judgments of the district courts.
21
DeMOSS, dissenting in part:
With all due respect for the majority, I cannot join the
majority opinion in its entirety.
As indicated in the majority opinion, these three separate
appeals are before us on grant of certificates of appealability
(COAs) by the district court as follows:
1. “The district court granted Caldwell a COA to this
court on whether the district court erred in determining all issues
relating to Caldwell’s guilty plea and the deferred adjudication
community supervision became final thirty days after the order was
imposed, rather than thirty days after the formal adjudication of
guilt”;
2. “The district court granted Martinez a COA on whether
his conviction became final after the expiration of the time for
appealing his guilty plea and the deferred adjudication or if his
conviction became final after the expiration of the time for
appealing the state court’s judgment adjudicating guilt”; and
3. “The district court granted a certificate of
appealability to Beck on the issue of when a conviction and
imposition of probationary sentence, which is subsequently revoked,
is final for purposes of AEDPA’s one year statute of limitation.”
In my view, the majority errs in its answers to the COAs in
Caldwell’s and Martinez’s appeals where it concludes that the
initial order of deferred adjudication by the state trial court
constitutes a final judgment that starts the running of the one-
year statute of limitation under AEDPA’s § 2244(d). See 28 U.S.C.
§2244(d). In my view, the majority is correct in concluding as to
Beck that the judgment of conviction based on the jury verdict and
the fixing of Beck’s sentence, even though that sentence was
probated pursuant to the jury recommendation, constitutes a final
judgment that starts the running of the one-year statute of
limitations under § 2244(d).
The two processes available under Texas statutory provisions,
i.e., deferred adjudication on the one hand and probating the
sentence on the other hand, are separate and distinct processes
intended to serve separate and distinct purposes. In my view,
deferred adjudication under Texas law is a process intended to give
selected offenders an opportunity to avoid the stigma inherent in
the entry of a judgment of guilt for a felony offense by postponing
the actual determination of guilty for a period of years during
which a defendant who complies with the conditions specified by the
sentencing judge during that term can ultimately receive a
dismissal of the indictment or information against him. See Ex
parte Laday, 594 S.W.2d 102, 104 (Tex. Ct. Crim. App. 1980). If,
however, the defendant fails to comply with the conditions of the
deferred adjudication term, a judge can revoke the term of deferred
adjudication, enter an order adjudicating the defendant’s guilt,
and fix the sentence to be served by the defendant. See Dahlkoetter
23
v. State, 628 S.W. 2d 255, 257-58 (Tex. Ct. App. 1982). Straight
probation of a sentence on the other hand occurs only after a
defendant has been adjudicated guilty of an offense and his
sentence has been fixed, but the sentencing judge, either upon his
own recommendation or upon a recommendation by the jury, permits
the defendant to serve his sentence on probation without actual
incarceration.
There are two absolute essentials to a final judgment in a
criminal case: first, a determination of guilt or the absence of
guilt and second, if the defendant is found guilty, a sentence
imposing a fine or requiring the defendant to serve time in prison
as punishment for that crime. See Hurley v. State, 130 S.W. 3d 501,
505 (Tex. App. – Dallas 2004, no pet.h) In the circumstance of a
deferred adjudication, these two essential elements are not
determined at the time of the initial order for deferred
adjudication, but are instead determined at some later time if, as,
and when the defendant on deferred adjudication violates a
condition of that deferred adjudication. See TEX. CODE CRIM. PROC.
art. 42.12 § 5(a); Hurley, 130 S.W. 3d at 505-06. In the case of
a defendant whose sentence is probated, the two essentials of
determination of guilt and determination of the punishment for the
crime have been determined, but for reasons separate and distinct
from his guilt or punishment, the defendant is given the
opportunity to serve his sentence on probation instead of in
24
prison.
In further support of the distinction between these two
processes under Texas law, I would point out that the term of years
for deferred adjudication and the term of years to be served after
adjudication are not the same. Caldwell and Martinez both received
ten years of deferred adjudication but each got substantially
longer terms of imprisonment as punishment when guilt was
adjudicated. In the case of Becks’s straight probation, however,
the years of probation were the same as the years of punishment.
As the majority opinion points out, the issues raised by the
COAs before us in these three appeals are issues of first
impression before this Court and there is substantial conflict in
the federal district courts as to the proper resolution of these
issues. As indicated by footnote ten in the majority opinion, five
previous district court opinions previously reached the same
conclusion as I do that an initial order of deferred adjudication
is not a final judgment. That conclusion was likewise reached by
the district court in Martinez’s case, so there have been six prior
determinations by our district courts supporting my view. Footnote
ten of the majority opinion indicates the three prior cases in
which district courts have reached the same conclusion as the
majority opinion; and to that we must add the conclusion of the
district court in Caldwell’s case, so the final count is six to
four among the district courts favoring my view of the significance
of deferred adjudication.
25
One final consideration that motivates me to dissent from the
majority’s determination that the initial order in a deferred
adjudication process starts the one-year statute of limitation
running is that most defendants and their counsel have little cause
to worry about seeking appeal or habeas relief when the order
entered by the state trial judge in effect says “I’m not going to
adjudicate you guilty at this time, but give you a period of years
to earn a dismissal of the charges against you by complying with
the conditions of the deferred adjudication term I am defining for
you.” I am aware, of course, of the abuses Congress intended to
eliminate through the restrictions created by AEDPA, one of which
is the new one-year statute of limitation in § 2244(d). I genuinely
doubt, however, that Congress specifically addressed the
circumstance of an order of deferred adjudication under Texas law
when it fixed one of the dates for the beginning of the one-year
statute of limitation as “the date on which the judgment became
final”. The more likely date Congress contemplated is the date on
which the state court actually adjudicates guilt and fixes the
sentence in order to satisfy Congress’s policy of having a
limitation period and still avoid the inadvertent loss of the
remedial benefits of the Great Writ, as occurred with Caldwell and
Martinez in this appeal under the majority’s approach.
I would reverse the judgments of the district court in
Caldwell and Martinez, and affirm the judgment of the district
26
court in Beck.
27