IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 14, 2007
No. 05-20559 Charles R. Fulbruge III
Clerk
Wilbert Ray Hutson
Petitioner-Appellant
v.
Nathaniel Quarterman, Director, Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent-Appellee
Appeal from the United States District Court
For the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM:
At issue is whether a post-conviction motion pursuant to Texas Code of
Criminal Procedure article 64.01 for DNA testing qualifies as “other collateral
review” and thus tolls the Antiterrorism and Effective Death Penalty Act’s
(AEDPA’s) one-year limitations period under 28 U.S.C. § 2244(d)(1). We
conclude that it does.
I
On September 26, 2001, Wilbert Ray Hutson was convicted by a jury of
aggravated assault and was sentenced to ten years in prison. On October 10,
2002, the state appellate court affirmed Hutson’s conviction. On April 2, 2003,
the Texas Court of Criminal Appeals refused his petition for discretionary
review. The final disposition date was April 18, 2003.
No. 05-20559
Hutson filed a petition for writ of certiorari in the United States Supreme
Court, which was returned because it did not comply with court rules. On May
7, 2003, Hutson filed a motion for an extension of time to file the petition.
Ultimately, Hutson attempted to file a writ three separate times, all of which
were returned for failure to comply with court rules.
On July 26, 2004, Hutson filed a state habeas application challenging his
conviction. The Texas Court of Criminal Appeals denied that petition without
written order on February 9, 2005.
On January 2, 2003, and while his appeal was pending, Hutson filed a
motion for DNA testing1 of the box cutter used to commit the assault. The state
trial court held a hearing on April 12, 2004 and denied the motion for DNA
testing. The court found that Hutson had failed to show that the evidence still
existed and was in a condition suitable for testing. The Fourteenth District
Court of Appeals for Texas affirmed the trial court’s denial of DNA testing on
April 28, 2005. The Texas Court of Criminal Appeals refused a petition for
discretionary review on September 28, 2005.
On March 28, 2005,2 Hutson filed this § 2254 petition arguing that (1) he
was denied the right of self-representation; (2) he received ineffective assistance
of counsel; (3) the evidence was insufficient; and (4) he was denied the
opportunity to plead self-defense. Hutson also filed a motion for extension of
time to file his § 2254 petition. While he acknowledged that the AEDPA imposed
a one-year limitations period, he argued that the period should be tolled.
Specifically, Hutson contended that the state court did not rule on his motion for
DNA testing in a timely manner since he filed it in January 2003 and the court
1
TEX. CODE CRIM. P. art 64.01.
2
See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (holding that under the
“mailbox” rule applicable to pro se prisoners, documents are deemed filed in federal court when
delivered to prison authorities for mailing).
2
No. 05-20559
declined to rule until April 12, 2004. Hutson argued this frustrated his ability
to file his state application. Additionally, Hutson contended the DNA motion is
“other collateral review” that suspended the limitations period. He also alleged
that the State confiscated his legal materials and that he was denied access to
the law library and other legal resources.
The district court dismissed Hutson’s § 2254 petition as time-barred.
Specifically, the district court ruled that the Texas Court of Criminal Appeals
refused his petition for discretionary review on April 18, 2003 and his conviction
became final on July 17, 2003, when the time for seeking a writ of certiorari
expired. Thus, the court concluded that his § 2254 petition was due no later
than July 17, 2004. Additionally, the court said his state habeas corpus
application did not toll the federal limitations because the state application was
filed after July 17, 2004. Hutson failed to allege grounds for equitable tolling,
and none was apparent in the record. Finally, the district court held that none
of the limitations-period exceptions listed in § 2244(d)(1) was applicable. The
district court did not specifically address Hutson’s argument that his DNA
motion was “other collateral review” that suspended the limitations period. The
district court denied a COA. Hutson timely appealed, and this court granted a
COA only for the issue of whether Hutson’s postconviction motion for DNA
testing is an application for “other collateral relief” so as to suspend the
limitations period of § 2244(d). We now reverse the district court’s dismissal of
Hutson’s petition as time-barred.
II
This court has not yet addressed whether a postconviction request for DNA
testing3 is a “properly filed application for . . . other collateral review” under
3
TEX. CODE CRIM. P. art. 64.01.
3
No. 05-20559
§ 2244(d)(2). Both parties concede that if the motion for DNA testing is
considered a properly filed application for other collateral review within the
meaning of § 2244(d)(2), then Hutson’s § 2254 petition is timely filed.
In Moore v. Cain,4 this court determined whether a writ of mandamus
constituted “other collateral review.”5 We noted that:
[W]ith this language, Congress meant to include within the scope of
§ 2244(d)(2) those “properly filed” applications, without respect to state
nomenclature or the nature of the petitioner’s state confinement, that,
pursuant to the wording of § 2244(d)(2), seek “review” of the “pertinent
judgment or claim.”6
In Moore, as here, our key inquiry was whether Moore’s mandamus application
sought “review” of the judgment pursuant to which he was incarcerated.7 We
concluded that the mandamus action merely directed the trial court to perform
its duty; it did not challenge Moore’s judgment. In particular, we noted that in
adjudicating the mandamus application, the circumstances surrounding the
judgment were irrelevant and the propriety of that judgment was not at issue.8
Under Texas law, a convicted person may submit to the convicting court
a motion requesting DNA testing of evidence containing biological material.9
The convicted person must demonstrate that the subject evidence “was secured
in relation to the offense that is the basis of the challenged conviction and was
in possession of the state during the trial of the offense,” but that the state has
4
298 F.3d 361 (5th Cir. 2002).
5
Id. at 366.
6
Id. at 366-67.
7
Id. at 367.
8
Id.
9
TEX. CODE CRIM. P. art. 64.01(a).
4
No. 05-20559
not previously tested it.10 Additionally, the convicted person must show that the
identity of the perpetrator was or is an issue in the case and must establish by
a preponderance of the evidence that he would not have been convicted if
exculpatory results had been obtained through DNA testing.11 If these
requirements are met, the court may order DNA testing.12 After examining the
results of the testing, the convicting court shall hold a hearing and make a
finding as to whether it is reasonably probable that the person would not have
been convicted had the results been available during the trial of the offense.13
If the convicting court decides that the finding is favorable to the convicted
person under article 64.04, the court may release the convicted person on bail
“pending the conclusion of court proceedings or proceedings under Section 11,
Article IV, Texas Constitution, and Article 48.01.”14 Section 11 of Article IV and
Article 48.01 give the governor power to pardon and dictate the procedure for
pardoning a convicted person.
As a general matter, this Court has held that the language of the federal
habeas statute of limitations must be interpreted under federal law.15 But this
court has also noted that some consideration of state law is inevitable when
analyzing the AEDPA’s limitations.16 Numerous Texas state appellate courts
have equated the Texas statute providing for post-conviction DNA proceedings
10
TEX. CODE CRIM. P. art. 64.01(b).
11
TEX. CODE CRIM. P. art. 64.03(a)(1)(B), (2)(A).
12
TEX. CODE CRIM. P. art. 64.03(b).
13
TEX. CODE CRIM. P. art. 64.04.
14
TEX. CODE CRIM. P. art. 17.48.
15
See Caldwell v. Dretke, 429 F.3d 521, 527–28 (5th Cir. 2005).
16
Foreman v. Dretke, 383 F.3d 336, 339 (5th Cir. 2004).
5
No. 05-20559
with habeas corpus proceedings in that both make “a collateral inquiry into the
validity of the conviction.”17
Our inquiry in Moore was whether the motion sought review of the
judgment pursuant to which the convicted person was incarcerated. Here, the
motion for post-conviction DNA proceedings is seeking to challenge that
judgment by potentially requiring that the trial court hold a hearing to
determine whether it was reasonably probable that the convicted person would
have been acquitted given the DNA results. In short, and under the Moore
inquiry, Hutson’s motion for DNA testing is a request for “review” of the
judgment pursuant to which he is incarcerated.
Additionally, the Supreme Court has held that “[the] AEDPA’s tolling rule
is designed to protect the principles of ‘comity, finality, and federalism,’ by
promoting ‘the exhaustion of state remedies while respecting the interest of
finality of state court judgments.’”18 Other circuits have held that federal courts
should give state courts the opportunity to review a claim and provide any
necessary relief before the federal courts proceed because such restraint on the
part of federal courts reinforces comity and may obviate federal review.19 If the
federal courts deny tolling the AEDPA’s limitations, petitioners might forego
17
Mearis v. State, 120 S.W.3d 20, 25 (Tex.App.—San Antonio 2003). See also Rose v.
State, 198 S.W.3d 271, 272 (Tex. App.—San Antonio 2006) (“A hearing on post-conviction DNA
testing is a collateral attack on a judgment comparable to a habeas corpus proceeding.”);
Cravin v. State, 95 S.W.3d 506, 510 (Tex.App.—Houston [1st Dist.] 2002) (agreeing with the
appellee’s argument that the post-conviction DNA proceeding is akin to habeas corpus in that
both proceedings are a collateral inquiry into the validity of the conviction).
18
Carey v. Saffold, 536 U.S. 214, 222 (2002).
19
See, e.g., Cowherd v. Million, 380 F.3d 909, 914 (6th Cir. 2004); Sweger v. Chesney,
294 F.3d 506, 519 (3rd Cir. 2002); Ford v. Moore, 296 F.3d 1035, 1040 n.9 (11th Cir. 2002);
Carter v. Litscher, 275 F.3d 663, 665 (7th Cir. 2001); Tillema v. Long, 253 F.3d 494, 501 (9th
Cir. 2001).
6
No. 05-20559
state-law remedies to retain their right to federal review.20 This court agrees
with these principles, and notes that the comity argument especially resonates
in this case. Texas has enacted a right to DNA reexamination; the state has
decided to impose a potential disruption to the finality of its own cases in order
to better protect the wrongfully accused. Comity therefore dictates that the
federal courts give Texas courts the time to review these DNA claims and
provide necessary relief without forcing convicted persons to choose between the
two systems thereby undermining the remedy the Texas legislature has
provided.
In construing the meaning of “other collateral relief,” the Supreme Court
stated that “Congress may have refrained from exclusive reliance on the term
‘post-conviction’ so as to leave no doubt that the tolling provision applies to all
types of state collateral review available after a conviction and not just to those
denominated ‘post-conviction’ in the parlance of a particular jurisdiction.”21
Hutson’s motion for DNA testing, unlike the mandamus writ in Moore,
constitutes “other collateral review.”
The State finally argues that even if this Court finds that a motion for
DNA testing operates as a tolling mechanism, Hutson’s particular motion should
not toll the limitations period because no DNA evidence existed to test.
Specifically, the State argues that since Hutson failed to meet the preliminary
requirements of article 64, the trial court could not in fact review the conviction
under article 64.04 and thus Hutson’s motion was frivolous. This argument is
without merit. Our Moore inquiry is whether the motion “sought ‘review’ of the
20
Ford, 296 F.3d at 1040 n.9.
21
Duncan v. Walker, 533 U.S. 167, 177 (2001).
7
No. 05-20559
judgment pursuant to which he is incarcerated,”22 not that the judgment was in
fact reviewed. Hutson’s motion sought review of his conviction.
III
This court concludes that a motion to test DNA evidence under Texas Code
of Criminal Procedure article 64 constitutes “other collateral review” and thus
tolls the AEDPA’s one-year limitations period under 28 U.S.C. § 2244(d)(1). For
that reason, this court REVERSES AND REMANDS the district court’s
dismissal of Hutson’s § 2254 petition as time-barred.
22
Moore, 298 F.3d at 367 (emphasis added).
8