Crutcher v. Cockrell

              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 01-20939
                           Summary Calendar


WILLIAM DEAN CRUTCHER,

                                              Petitioner-Appellant,

versus

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

                            August 28, 2002

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:

     William Dean Crutcher, Texas prisoner # 780331, appeals from

the dismissal, as time-barred, of his 28 U.S.C. § 2254 application.

A certificate of appealability (COA) was granted on the issue of

whether the district court erred in holding that Federal Rule of

Civil Procedure 6(e) does not apply to the calculation of the one-

year limitations period under 28 U.S.C. § 2244(d).

     Crutcher was convicted in Texas state court, and, after his

state court appeals were denied, he filed a petition for writ of

certiorari to the United States Supreme Court.       The Supreme Court
denied his petition on April 19, 1999.1             On April 19, 2000,

Crutcher filed a state court habeas application.           The Texas Court

of Criminal Appeals denied his application on December 6, 2000.

Crutcher filed his instant 28 U.S.C. § 2254 application in federal

court on December 11, 2000.

     Rule 6(e) adds three days to the prescribed period “[w]henever

a party has the right or is required to do some act or take some

proceedings within a prescribed period after the service of a

notice or other paper upon the party and the notice or paper is

served   upon   the   party   under   Rule   5(b)(2)(B),   (C),   or   (D).”2

Crutcher first argues that this provision is applicable to the

“front end” of his limitations period with respect to the Supreme

Court’s mailed notification of the denial of his petition for writ

of certiorari.        He contends that 28 U.S.C. § 2244(d)(1)(A) is

ambiguous because it does not make explicit reference to a decision

date or filing date as the triggering event for the statute of

limitations.3

     1
         Crutcher v. Tex., 526 U.S. 1074 (1999).
     2
         FED. R. CIV. P. 6(e).
     3
         28 U.S.C. § 2244(d) provides:

     (1) A 1-year period of limitation shall apply to an
     application for a writ of habeas corpus by a person in
     custody pursuant to the judgment of a State court. The
     limitation period shall run from the latest of—
     (A) the date on which the judgment became final by the
     conclusion of direct review or the expiration of the time
     for seeking such review;
     (B) the date on which the impediment to filing an

                                      2
      We conclude that Rule 6(e) does not apply to the calculation

of the one-year limitations period under 28 U.S.C. § 2244(d)(1)(A).

The one-year statute of limitations on habeas applications begins

to run under 28 U.S.C. § 2244(d)(1)(A) when the judgment of

conviction becomes final, which, in the case of a petitioner who

has filed a timely petition for writ of certiorari to the Supreme

Court, occurs “when the Supreme Court denies the petition for writ

of certiorari.”4      In view of our binding holdings in this regard,

we   cannot   agree   that   Rule   6(e)   is   applicable   simply   because

notification of the denial is provided by mail.              For purposes of

the applicability of Rule 6(e), “the fact that notice is to be

served by mail is not dispositive,” but, rather, “[t]he correct


      application created by State action in violation of the
      Constitution or laws of the United States is removed, if
      the applicant was prevented from filing by such State
      action;
      (C) the date on which the constitutional right asserted
      was initially recognized by the Supreme Court, if the
      right has been newly recognized by the Supreme Court and
      made retroactively applicable to cases on collateral
      review; or
      (D) the date on which the factual predicate of the claim
      or claims presented could have been discovered through
      the exercise of due diligence.
      (2) The time during which a properly filed application
      for State post-conviction or other collateral review with
      respect to the pertinent judgment or claim is pending
      shall not be counted toward any period of limitation
      under this subsection.

      4
        Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002)
(per curiam) (applying the rule to 28 U.S.C. § 2244(d)(1)(A) on a
state prisoner’s petition); see also United States v. Thomas, 203
F.3d 350, 356 (5th Cir. 2000) (applying the rule to 28 U.S.C. §
2255(1) on a federal prisoner’s petition).

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inquiry is whether the required actions must be performed within a

prescribed period of filing or of service” and, “[i]f the act is to

be taken after filing, the time for action begins to run from that

date.”5

     28 U.S.C. § 2244(d)(1)(A) looks to when a judgment becomes

final, not when the petitioner becomes aware that the judgment is

final.6    In the context of judgments of conviction for which a

petition for writ of certiorari to the Supreme Court is filed, we

look to when the Supreme Court denied the petition, which occurs on

the date the order denying the petition is issued, i.e., filed, by

the Clerk of the Supreme Court, not when notification of this order

is mailed to or received by the petitioner.7    Rule 6(e) therefore

does not apply to the statute of limitations period under 28 U.S.C.

§ 2244(d)(1)(A) because “‘Rule 6(e) does not apply to time periods

that begin with the filing in court of a judgment or an order.’”8



     5
         Lauzon v. Strachan Shipping Co., 782 F.2d 1217, 1220 (5th
Cir. 1985); accord Hong v. Smith, 129 F.3d 824, 824-25 (5th Cir.
1997).
     6
        See Giesberg, 288 F.3d at 270 (holding that “the key to” 28
U.S.C. § 2244(d)(1)(A) “is the finality of the underlying
judgment”). See generally Lookingbill v. Cockrell, 293 F.3d 256,
262 (5th Cir. 2002) (“Federal courts interpret the federal time
period as running from the event described rather than from receipt
of notice.”) (citing Halicki v. La. Casino Cruises, Inc., 151 F.3d
465, 467 (5th Cir. 1998); Lauzon, 782 F.2d at 1220).
     7
          See Giesberg, 288 F.3d at 271; Thomas, 203 F.3d at 355-56.
     8
         Halicki, 151 F.3d at 468 (quoting 1 JAMES W. MOORE   ET   AL.,
MOORE'S FEDERAL PRACTICE § 6.05[3], at 6-35 (3d ed. 1998)).

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     Crutcher also argues that Rule 6(e) is applicable to the “back

end” of his limitations period because the Texas Court of Criminal

Appeals    did   not    postmark   the    notification    of     its    denial   of

Crutcher’s state habeas application until two days after the

judgment was issued.           We are unable to perceive how the Texas

court’s alleged delay in postmarking the denial implicates the

applicability of Rule 6(e), but, in any event, we find no merit in

Crutcher’s argument insofar as he is arguing that Rule 6(e) should

apply     to   extend   the    period    for   tolling   under    28    U.S.C.     §

2244(d)(2).9       To    the    extent    that   Crutcher      argues    for     the

applicability of Federal Rule of Civil Procedure 6(a) or for

equitable tolling, his arguments cannot be considered as these

issues are not within the scope of the COA granted by this court,

which is limited to the question of whether Rule 6(e) applies.10

     We conclude that Rule 6(e) does not apply to the 28 U.S.C. §

2244(d)(1)(A) limitations period. Accordingly, the judgment of the

district court is AFFIRMED.




     9
        See Phillips v. Donnelly, 216 F.3d 508, 511 & n.3 (5th
Cir.) (per curiam) (holding that, under 28 U.S.C. § 2244(d)(2), a
state habeas petition is not “pending,” and thus statutory tolling
does not apply, between the date of the state court’s denial of the
petition and the date of the prisoner’s receipt of notice of the
denial), reh’g granted in part on other grounds, 223 F.3d 797 (5th
Cir. 2000).
     10
        See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)
(holding that “COAs are granted on an issue-by-issue basis, thereby
limiting appellate review to those issues alone”).

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