Roberts v. Cockrell

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-50236

FLOYD CALVIN ROBERTS,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
For the Western District of Texas

January 24, 2003

Before JOLLY, HIGGINBOTHAM, and MAGILL,* Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Floyd Calvin Roberts, a Texas inmate convicted of delivery of

marijuana to a minor, appeals the district court’s order dismissing

his application for habeas corpus relief. We affirm.

I.

Roberts was convicted and sentenced in Texas state court for

delivery of marijuana to a minor. The Texas court of appeals

*
Senior Circuit Judge of the Eighth Circuit, sitting by designation.
affirmed his conviction on December 23, 1999,1 and overruled his

motion for rehearing on February 10, 2000. Roberts did not file a

petition for discretionary review. The court of appeals issued its

mandate on April 7, 2000. Roberts filed his state habeas

application on March 1, 2001, which was denied on September 12,

2001.

Roberts filed this 28 U.S.C. § 2254 application on October 12,

2001.2 The respondent filed a motion to dismiss Roberts’

application as time-barred pursuant to 28 U.S.C. § 2244(d)(1).

Respondent argued that the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such

review on March 13, 2000, thirty days after Roberts’ motion for

rehearing was denied, which constituted the date on which Roberts

could not seek further direct review.3 Respondent noted that

Roberts’ state application tolled the limitations period from March

1, 2001, to September 12, 2001, and thus the one-year period

expired on September 24, 2001. Roberts’ § 2254 application, filed

on October 12, 2001, was therefore time-barred. Respondent also

1
Roberts v. State, 9 S.W.3d 460 (Tex. App.-Austin 1999, no pet.).
2
A prisoner’s habeas application is considered “filed” when delivered to
the prison authorities for mailing to the district court. See Spotville v. Cain,
149 F.3d 374, 378 (5th Cir. 1998). The earliest possible date that Roberts could
have filed his application is the day he signed it, October 12, 2001.
3
Texas Rule of Appellate Procedure 68.2 provides that a petition for
discretionary review must be filed within 30 days after the day the court of
appeals’ judgment was rendered or the day the last timely motion for rehearing
was overruled by the court of appeals.

2
noted that Roberts had not asserted any grounds for equitable

tolling. Roberts did not file a reply.

The magistrate judge recommended that respondent’s motion to

dismiss be denied. The magistrate judge held that based on the

Texas Court of Criminal Appeal’s decision in Ex Parte Johnson,4 the

conviction was not final until the Texas court of appeals issued

its mandate. The magistrate judge found that the mandate in

Roberts’ case had not issued until April 12, 2000, making his §

2254 application filed on October 12, 2001, timely.

The respondent objected, arguing that the decision in Johnson

was a matter of state law and was not controlling in determining

whether Roberts’ conviction was final for purposes of the federal

statute of limitations in 28 U.S.C. § 2244(d)(1)(A).

The district court dismissed Roberts’ § 2254 application as

time-barred. The district court agreed with the respondent, noting

that although the magistrate judge’s conclusion was not without

support, the better view was that if the prisoner did not seek a

petition for discretionary review, the “or the expiration of the

time for seeking such review” phrase of § 2244(d)(1)(A) applied and

the limitations period began to run at the conclusion of the time

during which the prisoner could have sought further direct review.5

4
12 S.W.3d 472 (Tex. Crim. App. 2000) (holding that a direct appeal is
final when the mandate from the court of appeals issues).
5
28 U.S.C. § 2244(d)(1)(A) (2000).

3
 Roberts filed a notice of appeal and an application for a

certificate of appealability (COA), arguing for the first time that

the district court had failed to consider the thirteen times that

Roberts had been hospitalized during the one-year period, which

should have equitably tolled the limitations period. He contended

that because the district court dismissed his application with

prejudice, he was unable to show the court the basis for his

contention and to proffer documentation of his hospitalizations.

The district court granted a COA on the issue whether Roberts’

application was time-barred.

II.

28 U.S.C. § 2244(d)(1) provides that the one-year limitation

period shall run from the latest of several start dates, including

“the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such

review.”6 Roberts argues that the district court erred in holding

that his federal habeas petition was not filed within AEDPA's

one-year limitations period. We review de novo the denial of a

federal habeas petition on procedural grounds.7 The AEDPA statute

6
Id.

7
Lookingbill v. Cockrell, 293 F.3d 256, 260 (5th Cir. 2002) (citing
Emerson v. Johnson, 243 F.3d 931, 932 (5th Cir. 2001); Johnson v. Cain, 215 F.3d
489, 494 (5th Cir. 2000)).

4
of limitations applies to all habeas petitions filed after the

Act's effective date, April 24, 1996.8

We begin by noting that when interpreting the statutory

language of 28 U.S.C. § 2244(d)(1)(A), we are not bound by the

state law’s definition of finality. As we stated when determining

whether a state habeas petition was “pending” for purposes of 28

U.S.C. § 2244(d)(2), “although we are sensitive to state law when

determining whether a motion is still ‘pending,’ federal law still

determines the time limits under AEDPA.”9 In Caspari v. Bohlen,10

the Supreme Court analyzed the finality of a state conviction for

purposes of determining retroactivity under Teague v. Lane.11 The

Court held that convictions become final “when the availability of

direct appeal to the state courts has been exhausted and the time

for filing a petition for a writ of certiorari has elapsed or a

timely filed petition has been finally denied.”12 In Flanagan v.

Johnson, we held that, based in part on Caspari, a state prisoner’s

conviction becomes final for purposes of § 2244 ninety days after

8
Kiser v. Johnson, 163 F.3d 326, 327 (5th Cir. 1999).
9
Lookingbill, 293 F.3d at 262 (citing Artuz v. Bennett, 531 U.S. 4, 8-9
(2000) (giving language of § 2242(d)(2) priority over state law when determining
whether motion is "properly filed" in state courts)); Emerson, 243 F.3d at 934-35
(focusing on whether motion was practically pending rather than permitted by
Texas law); Flanagan v. Johnson, 154 F.3d 196, 200-01 (5th Cir. 1998) (applying
Fed. R. Civ. P. 6's timetables, rather than state law, to 28 U.S.C. §
2244(d)(2))).
10
510 U.S. 383 (1994).
11
489 U.S. 288 (1989).
12
Caspari, 510 U.S. at 390.

5
the judgment is entered, when the time to file a petition for writ

of certiorari with the Supreme Court has expired.13

Here, Roberts did not file a petition for discretionary review

within the thirty days allowed following the state appeals court

overruling his motion for a rehearing. Therefore Roberts was

unable to pursue further direct review.14 Roberts argues that

rather than extending the reasoning of Flanagan to find that his

conviction was final at the end of the thirty-day period, we should

instead rely on state law, which holds that a conviction is not

final until the appeals court issues its mandate.15

The assertion that we should look to state law to determine

when a state conviction is final is not without support. As noted

above, we look to state law for a determination of how long a

prisoner has to file a direct appeal. In addition, at least one

circuit has looked to state law in determining that a conviction is

final when the mandate issues.16 This is in contrast to the Ninth

Circuit, which recently held that it would not apply a state law

13
Flanagan, 154 F.3d at 197 (citing Caspari, 510 U.S. at 389).
14
By failing to file a petition for discretionary review, Roberts
apparently waived his right to seek a writ of certiorari from the Supreme Court.
See Sup. Ct. R. 10(b), 6 & 13 (requiring filing within 90 days of a state court
of last resort entering judgement, with review of the decision by a state court
of last resort).
15
See Ex Parte Johnson, 12 S.W.3d 472 (Tex. Crim. App. 2000) (holding that
a direct appeal is final when the mandate from the court of appeals issues).
16
See Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (holding that
under Florida law the issuance of the mandate on direct appeal makes a criminal
judgment final, and that that date will be used for purposes of § 2244(d)(1)(A)).

6
that views issuance of the mandate as establishing finality to

determine when a state conviction becomes final.17 This split is

found within the district courts of our circuit as well.18 Finally,

in an unpublished opinion, we stated that it was not plain error

for a district court to hold that for purposes of § 2244(d)(1)(A)

the date the state appellate court issues its mandate is not

controlling. However, that opinion did not expressly reject the

application of state law either.19

We find no reason to look to state law to determine when a

state conviction becomes final for the purposes of § 2244(d)(1)(A).

The language of § 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.”20 We previously held that direct

review includes a petition for writ of certiorari to the Supreme

Court.21 Therefore, the “conclusion of direct review” is when the

Supreme Court either rejects the petition for certiorari or rules

17
See Wixom v. Washington, 264 F.3d 894, 897-98 (9th Cir. 2001) (rejecting
for purposes of § 2244(d)(1)(A) the use of a Washington state law which views
issuance of the mandate as making a conviction final).

18
See, e.g., Royale v. Cockrell, No. 3:01-CV-1063-X, 2001 WL 1148946, at
*3 (N.D. Tex. Sept. 18, 2001) (stating that “finality of a judgment is determined
pursuant to state law” which holds that a judgment does not become final until
the mandate has issued). But see Mott v. Johnson, No. 3:01-CV-0171-R, 2001 WL
671476, at *2 (N.D. Tex. June 12, 2001) (stating that petitioner’s conviction
became final thirty days after the court of appeals rendered judgment).

19
See Vanduren v. Cockrell, No. 00-20899 (5th Cir. Jan. 11, 2001).
20
§ 2244(d)(1)(A).
21
See Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002).

7
on its merits. If the conviction does not become final by the

conclusion of direct review, it becomes final by “the expiration of

the time for seeking such review.”22 We previously held that this

includes the ninety days allowed for a petition to the Supreme

Court following the entry of judgment by the state court of last

resort. If the defendant stops the appeal process before that

point, the conviction becomes final when the time for seeking

further direct review in the state court expires. This holding is

consistent with our previous decision in Flanagan, where finality

was established by the expiration of the ninety-day period to seek

further review with the Supreme Court, rather than the date the

conviction became final for purposes of state law.23

Here, the one-year limitations period began to run on March

11, 2001, when the thirty-day period for filing a petition for

discretionary review in state court ended.24 Because the decision

became final when the time for seeking further direct review

expired, the issuance of the mandate by the state court of appeals

is of no consequence for the purposes of § 2244(d)(1)(A). Although

the one-year limitations period was tolled while Roberts’ state

habeas petition was pending, his one-year period expired on

22
§ 2244(d)(1)(A).
23
This holding also has the advantage of ensuring proper notice of the
defendant. The state appeals court notifies the defendant when its judgment is
entered, but it sends the mandate to the trial court, not the defendant.
24
See Tex. R. App. P. 68.2(a).

8
 September 24, 2001 and therefore his § 2254 application

filed on October 12, 2001 is time-barred.

III.

Roberts argues that he is entitled to equitable tolling

because he was hospitalized thirteen times during the one-year

period. He contends that he was not permitted to argue the issue

of equitable tolling in the district court. “AEDPA's limitations

period is subject to equitable tolling and is not a jurisdictional

bar. Therefore, a court may toll the limitations period in ‘rare

and exceptional circumstances.’"25

Roberts’ equitable tolling argument was raised for the first

time in his COA application to the district court. We generally

will not consider a claim raised for the first time in a COA

application.26 However, even if we were to consider Roberts’ claim

for equitable tolling, it would fail on the merits.

To begin with, Roberts was not denied the opportunity to argue

equitable tolling in the district court. In the respondent’s

motion to dismiss before the district court, respondent pointed out

that Roberts had not alleged a basis for equitable tolling.

Roberts could and should have raised his equitable tolling argument

by filing a reply.

25
Lookingbill, 293 F.3d at 263-64 (emphasis in original) (quoting Davis
v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
26
See Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997).

9
 As the appellee correctly notes, Roberts has not supplied the

necessary details concerning his hospitalizations, such as when and

for how long and at what stage of the proceedings they occurred, so

as to allow a determination of whether they could have interfered

with his ability to file his § 2254 application in a timely manner.

Roberts did not provide these details to the district court in his

COA application, nor did he attempt to file a Rule 59(e) motion for

reconsideration. Therefore we find that Roberts has established no

reason to support equitable tolling of the one-year limitation.

IV.

For the reasons stated above, we AFFIRM the decision of the

district court finding that Roberts’ application for habeas relief

is time-barred.

10