REVISED, October 13, 1998
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 97-10912
JAMES C. FLANAGAN,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court For the Northern District of Texas September 1, 1998
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
Texas state prisoner James C. Flanagan appeals the district
court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as
time-barred by the one year period of limitation in the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214 (1996) ("AEDPA"). We reverse and remand
for further proceedings consistent with this opinion.
I.
James C. Flanagan was convicted by a Texas state jury of aggravated possession of more than 400 grams of cocaine in January
1989. The trial court sentenced Flanagan to ninety years
imprisonment and imposed a $100,000 fine. Flanagan’s conviction
was affirmed on direct appeal. On November 21, 1990, the Texas
Court of Criminal Appeals refused Flanagan’s petition for
discretionary review. Flanagan did not file a petition for writ of
certiorari to the United States Supreme Court. Hence, Flanagan’s
conviction became final on or about February 19, 1991, ninety days
after judgment was entered. Caspari v. Bohlen, 114 S. Ct. 948, 953
(1994); see also Motley v. Collins, 18 F.3d 1223, 1225 (5th Cir.
1994). Flanagan filed one state petition for habeas corpus, which
was denied without written order on May 12, 1993.
Flanagan filed this § 2254 petition for federal habeas corpus
relief on April 24, 1997. He claims that his conviction was
obtained without due process because he was called to testify on
his own behalf without being informed of his constitutional right
not to testify. See Jones v. Barnes, 103 S. Ct. 3308, 3312 (1983);
Malloy v. Hogan, 84 S. Ct. 1489, 1493-94 (1964). The state filed
a motion to dismiss Flanagan’s petition as time-barred by the one
year period of limitation in 28 U.S.C. § 2244(d). The district
court referred the matter to a magistrate judge, who recommended
that the petition be dismissed. Flanagan filed objections to the
magistrate judge’s report. The district court conducted a de novo
review, and then dismissed Flanagan’s § 2254 petition as time-
barred.
Flanagan filed a timely notice of appeal. Flanagan also moved
2 for a certificate of appealability (COA) in the district court,
which was denied. Flanagan then sought a COA in this Court, which
was granted as to the limited issue of whether Flanagan’s petition
was time-barred.
II.
Flanagan filed this § 2254 action after AEDPA’s April 24, 1996
effective date. His claim is therefore governed by the provisions
of that statute. Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997).
AEDPA provides in pertinent part:
(d)(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 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 of other collateral review with respect to the pertinent
3 judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
AEDPA severely constricts the time period allowed for filing
a federal habeas corpus action. Section 2244(d)(1)(A) sets forth
the general rule that a federal habeas petition must be filed
within one year after the petitioner’s conviction becomes final.
Section 2244(d)(2) provides that the time period during which a
properly filed state habeas application is pending shall not be
counted against the one year period. Section 2244(d)(1) sets up
statutory exceptions which can, in appropriate cases, extend the
time for filing a federal habeas petition beyond the one year
period after final conviction if the state imposes an
unconstitutional impediment to the filing of a federal habeas
petition, if the Supreme Court recognizes a new constitutional
right that is given retroactive effect, or if the petitioner is
unable through the exercise of due diligence to discover the
factual predicate of the petitioner’s federal habeas claim. 28
U.S.C. § 2244(d)(1)(B), (C) and (D). Prior to AEDPA, there was no
specific period of limitation governing federal habeas corpus
petitions, aside from the laches-like standard contained in Rule
9(a) of the Rules Governing Section 2254 Cases in the United States
District Courts. See Lonchar v. Thomas, 116 S. Ct. 1293, 1300-01
(1996); see also Brown v. Angelone, No. 96-7173, 1998 WL 389030 at
*1-2 (4th Cir. July 14, 1998). Under that standard, a “prisoner
4 could wait almost a decade to file his habeas petition without
violating Rule 9(a).” Angelone, 1998 WL 389030 at *2 (citing
Lochnar, 116 S. Ct. at 1300-01).
III.
Flanagan claims that the one year statutory period of
limitation did not begin to run until November 1996, because he
could not have discovered the factual predicate of his claim prior
to that time. See 28 U.S.C. § 2244(d)(1)(D). If Flanagan is
correct, then his § 2254 petition, which was filed six months later
on April 24, 1997, was timely.
Flanagan was tried in January 1989. Sometime thereafter,
Flanagan’s trial counsel was disbarred for undisclosed reasons.
Flanagan claims that as a result of the disbarment, he was unable
to locate his trial counsel for an extended period. In October
1996, Flanagan’s habeas counsel located Flanagan’s trial counsel in
a rehabilitation facility in rural Texas. In November 1996,
Flanagan’s habeas counsel secured an affidavit from Flanagan’s
trial counsel. The affidavit states that trial counsel does not
remember whether he and Flanagan discussed the concept that
Flanagan could refuse to testify.
Flanagan argues that the lawyer’s affidavit forms part of the
factual predicate of his suit because, by not conclusively negating
the proposition, the affidavit implicitly supports Flanagan’s claim
that he was not informed of his right not to testify. Flanagan is
confusing his knowledge of the factual predicate of his claim with
5 the time permitted for gathering evidence in support of that claim.
Trial counsel’s affidavit neither changes the character of
Flanagan’s pleaded due process claim nor provides any new ground
for Flanagan’s federal habeas petition. Section 2244(d)(1)(D) does
not convey a statutory right to an extended delay, in this case
more than seven years, while a habeas petitioner gathers every
possible scrap of evidence that might, by negative implication,
support his claim.
Interestingly, Flanagan did not even file trial counsel’s
purportedly crucial affidavit with his original federal habeas
petition. Rather, that affidavit was filed some time later as part
of Flanagan’s supplementary pleading. Flanagan supported his
original state habeas petition with his own affidavit, which was
executed on November 11, 1992. Flanagan’s November 1992 affidavit
sets forth the legal and factual basis for Flanagan’s claim that he
did not know he could refuse to testify.
We conclude that the lawyer’s affidavit formed no part of the
factual predicate of Flanagan’s due process claim. The factual
predicate of Flanagan’s claim, the fact that he was called to
testify and did not know he had the right to refuse, was actually
known to Flanagan no later than November 11, 1992, when he executed
the affidavit used to support his claim herein. Likewise, the
absence of trial counsel’s affidavit did not prevent Flanagan from
pursuing state habeas relief on that same ground. Flanagan’s
contention that the one year statute of limitations did not begin
to run until November 1996 is without merit.
6 IV.
Having concluded that the one year limitation period was not
tolled by the statutory exception embodied in § 2244(d)(1)(D), we
return to the statute to determine whether Flanagan’s petition was
otherwise time-barred.
Flanagan’s conviction became final on or about February 19,
1991. See 28 U.S.C. § 2244(d)(1)(A). Flanagan filed one
application for state habeas relief. The parties agree, and we
will accept for the sake of argument only, that the one year
limitation period did not begin until Flanagan’s state application
for habeas corpus relief was finally denied on May 12, 1993.1 See
id. § 2244(d)(2). There are no allegations that the state imposed
an unconstitutional impediment to the filing of Flanagan’s petition
for federal relief or that the Supreme Court has announced a new
rule applicable to Flanagan’s claim. Therefore, the statutory
exceptions embodied in § 2244(d)(1)(B) and § 2244(d)(1)(C) do not
apply. We conclude that Flanagan’s claim was time-barred no later
than May 12, 1994, almost two years before the April 24, 1996
1 Lest this opinion be cited as controlling authority with respect to the application of § 2244(d)(2), we feel compelled to add that the one year period almost certainly began running before that time. The mere existence of an application for state habeas relief does not, as the parties’ stipulation suggests, prevent the one year period of limitation from beginning until the state habeas application is finally decided. Rather, § 2244(d)(2) provides that the period during which a properly filed state habeas application is pending must be excluded when calculating the one year period. Under the plain language of the statute, any time that passed between the time that Flanagan’s conviction became final and the time that his state application for habeas corpus was properly filed must be counted against the one year period of limitation.
7 effective date of AEDPA.
Our Court recently joined many of our sister circuits by
holding that AEDPA’s one year statute of limitation cannot be
applied to retroactively extinguish claims that were technically
time-barred before the effective date of AEDPA. United States v.
Flores, 135 F.3d 1000, 1002-05 (5th Cir. 1998); see also Angelone,
1998 WL 389030 at *5; Miller v. Marr, 141 F.3d 976, 977 (10th Cir.
1998), petition for cert. filed, __U.S.L.W.__ (U.S. July 10, 1998)
(No. 98-5195); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998);
Calderon v. United States Dist. Court, 128 F.3d 1283, 1287 (9th
Cir. 1997), cert. denied, 118 S. Ct. 899 (1998); United States v.
Simmonds, 111 F.3d 685, 745-46 (10th Cir. 1997); Lindh v. Murphy,
96 F.3d 856, 866 (7th Cir. 1996), rev’d on other grounds, 117
S. Ct. 2059, 2068 (1997). Flores recognized that “‘all statutes of
limitation must proceed on the idea that the party has full
opportunity afforded him to try his right in the courts.’” Flores,
135 F.3d at 1004 (quoting Wilson v. Iseminger, 22 S. Ct. 573, 575
(1902)). To permit a statute of limitation to “‘bar the existing
rights of claimants without affording this opportunity’” would
amount to an “‘unlawful attempt to extinguish rights arbitrarily.’”
Id. (quoting Wilson, 22 S. Ct. at 575). A statute of limitation
must allow a reasonable time after it takes effect for the
commencement of suits upon existing claims. Id. Thus, Flores
concluded that habeas petitioners must be afforded a reasonable
8 time after AEDPA’s effective date for the filing of petitions for
collateral relief based upon claims that would otherwise be time-
barred before AEDPA’s April 24, 1996 effective date. Id. at 1004-
05.2
Flores also considered what would constitute a reasonable
post-AEDPA time period for the filing of pre-existing and otherwise
time-barred claims. Flores, 135 F.3d at 1005. The Court rejected
the ad hoc approach then being used by the Second Circuit, and
embraced instead a bright-line rule that the “reasonable time”
period contemplated by the Court’s holding would be co-extensive
with AEDPA’s one year statutory period of limitation. Id. at 1005-
06. The Court reasoned that the bright-line rule would tend to
“protect the reliance interests of affected parties without
contravening the legislative intent underlying the statute.” Id.
at 1005.3 Thus, petitioners like Flanagan, whose claims would
2 Although Flores dealt with the analogous statutory period of limitation governing motions for habeas corpus relief from federal conviction under 28 U.S.C. § 2255, the Court’s decision was not limited to § 2255 motions. See Flores, 135 F.3d at 1002 n.7. Rather, the Court noted that the limitation provisions for § 2255 motions and § 2254 petitions are virtually identical. Id. The Court further noted that § 2255 and § 2254 actions themselves are quite similar and that the statutes should generally be read in pari materia, where not obviously inconsistent. Id. Signifi- cantly, the Court also relied upon § 2254 cases to reach its decision in Flores. See id. The Court’s treatment of the issue demonstrates that its holding was intended to apply to both § 2254 and § 2255 cases, and we consider Flores to be controlling authority in this § 2254 case. 3 Since Flores was decided, the Second Circuit has abandoned the ad hoc approach in favor of the same bright-line rule adopted in Flores. See Ross v. Artuz, No. 97-2789, 1998 WL 400446 at *4-5 (2d Cir. June 24, 1998); Mickens v. United States, No. 97-2734, 1998 WL 350078 at *3 (2d Cir. June 24, 1998); Joseph v. McGinnis, No. 97-2656, 1998 WL 350075 at *1 (2d Cir. June 24, 1998); Rosa v.
9 otherwise be time-barred prior to the April 24, 1996 effective date
of AEDPA, now have one year after the April 24, 1996 effective date
of AEDPA in which to file a § 2254 petition for collateral relief.
Id. at 1006.
V.
Flanagan’s petition was filed on April 24, 1997. The state
argues that Flanagan’s petition was untimely because it was filed
one year and one day after the effective date of AEDPA. The key
issue here is how the one year “reasonable time” period prescribed
by Flores is to be computed.
“This Court has consistently used [Federal] Rule [of Civil
Procedure] 6(a)’s method for computing federal statutory time
limitations.” Lawson v. Conyers Chrysler, Plymouth & Dodge Trucks,
Inc., 600 F.2d 465, 466 (5th Cir. 1979); see also Vernell v. United
States Postal Serv., 819 F.2d 108, 111 n.6 (5th Cir. 1987); Gotham
Provision Co., Inc. v. First State Bank, 669 F.2d 1000, 1014 & n.17
(5th Cir. Unit B 1982); Jackson v. United States Postal Serv., 666
F.2d 258, 260 (5th Cir. 1982) (all expressly applying Rule 6(a) to
federal statutory limitation periods); FDIC v. Bledsoe, 989 F.2d
805, 811-12 (5th Cir. 1993); Hanner v. State of Miss., 833 F.2d 55,
59 (5th Cir. 1987) (both implicitly applying Rule 6(a) to federal
statutory limitation periods). Rule 6(a) provides, in relevant
part:
Senkowski, No. 97-2974, 1998 WL 334346 at *1 (2d Cir. June 24, 1998).
10 In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.
FED. R. CIV. P. 6(a). If we adhere to our longstanding rule that
Rule 6(a) applies when computing federal periods of limitation,
then April 24, 1996, the effective date of AEDPA, must be excluded
from the computation of the one year post-AEDPA time period, and a
petition raising a claim that was time-barred prior to April 24,
1996 is timely if filed on or before April 24, 1997. If, on the
other hand, Rule 6(a) is inapplicable to the reasonable time period
prescribed by Flores, then a petition raising a claim that was
time-barred prior to April 24, 1996 must be filed on or before
April 23, 1997.
The circumstances in Flores did not require the Court to
consider whether Rule 6(a) applied to the reasonable time period
there defined. Moreover, the Court did not expressly decide
whether the reasonable time period for filing an otherwise time-
barred claim would expire on April 23, or instead, on April 24. Of
those circuits that have included a particular date in their
decisions, most have simply announced that the reasonable time
period will expire on April 23 or April 24. E.g., Angelone, 1998
WL 389030 at *6 (petitions filed on or before April 23, 1997 are
timely); Miller, 141 F.3d at 977 (petitioner must “file prior to
April 24, 1997, one year after the enactment of the AEDPA”); Burns,
134 F.3d at 112 (“motions on file on or before April 23, 1997" are
timely). The Second Circuit is the only circuit to have identified
11 and directly addressed whether Rule 6(a)’s potential application to
AEDPA’s limitation period. In a spate of recent cases, that Court
held that Rule 6(a) operates to extend the statutory period of
limitation, and therefore, the reasonable time period permitted for
the filing of otherwise time-barred claims, until April 24, 1997.
See Ross, 1998 WL 400446 at *7 (“When a statute of limitations is
measured in years, the last day for instituting the action is the
anniversary date of the start of the limitations period.”);
Mickens, 1998 WL 350078 at *4 (“motions pursuant to § 2255 are not
barred by the statute of limitations established by AEDPA if filed
on or before April 24, 1997, the first anniversary of AEDPA’s
effective date”); Joseph, 1998 WL 350075 at *1 (motions “filed
within one year after the effective date of AEDPA, i.e. April 24,
1997" are timely); Rosa, 1998 WL 334346 at *1 (motions filed prior
to the “April 24, 1997 expiration of the one-year grace period” are
timely).
We agree with the considered judgment of the Second Circuit.
In Flores we held that the parties’ reliance interests justified a
rule equating AEDPA’s statutory limitation period with the
reasonable time period for filing claims that would otherwise be
time-barred before the effective date of AEDPA. Flores, 135 F.3d
at 1005. Flores relied in part upon this Court’s decision in
Hanner v. Miss., 833 F.2d 55 (5th Cir. 1987), noting that a one
year bright-line rule provided a “‘comparative ease of
administration, consistency, and predictability” that was “decisive
in its favor.’” Id. at 1006 n.19 (quoting Hanner, 833 F.2d at 58
12 n.6). While we are sensitive to the fact that AEDPA was clearly
intended to restrict the time limit for filing a federal habeas
petition, we do not see any significant benefit to be gained from
cutting the “reasonable period” off at April 23, rather than April
24. Indeed, the same interests in predictability and consistency
that drove our decision in Flores suggest that we should be loath
to deviate from our well-settled rule in favor of applying Rule
6(a) by creating a different rule in this context.
Nonetheless, Rule 6(a) is a general statutory rule, which may
be supplanted when the statute at issue provides more specific
direction. See FDIC v. Enventure V, 77 F.3d 123, 125 (5th Cir.
1996). We cannot, therefore, conclude our analysis without an
examination of the plain language of the statute. Section
2244(d)(1) provides that the one year period shall “run from” the
later of four alternative dates. The statutory provision does not
contain express language that would tend to negate the application
of Rule 6(a). Moreover, and in contrast to the statutory
limitation provisions construed in Enventure V, § 2244(d)(1) does
not contain a separate provision addressing the computation of
time.4 Given the lack of any express direction in the statute
4 We note that Enventure V appears to be the only published case in our Circuit rejecting application of Rule 6(a) to a federal statutory limitation period. Moreover, the Court’s holding in Enventure V, that Rule 6(a) does not apply to the limitation provision in § 1821(d) of the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA), is in at least potential conflict with the Court’s implicit application of Rule 6(a) to the same provision in FDIC v. Bledsoe, 989 F.2d 805, 811-12 (5th Cir. 1993). Enventure V distinguished Bledsoe as “confusing dicta at best.” Enventure V, 77 F.3d at 125. We need not resolve the conflict between the Court’s implicit application of Rule 6(a) to
13 itself, we are compelled to adhere to our Circuit’s well-
established rule that Rule 6(a) governs the computation of federal
statutory periods of limitation. We hold that Rule 6(a) applies to
the computation of the one year limitation period in § 2244(d) of
AEDPA. By extension, when computing the one year time period
applicable to petitions raising claims that would otherwise be
time-barred as of the April 24, 1996, that date must be excluded
from the computation and petitions filed on or before April 24,
1997 are timely.
CONCLUSION
We affirm the district court’s determination that the statute
of limitation was not tolled until Flanagan was able to contact and
obtain an affidavit from his trial counsel. We reverse the
district court’s implicit holding that Rule 6(a) does not govern
the computation of AEDPA’s one year limitation periods, and the
district court’s express holding that the one year post-AEDPA
period applicable to Flanagan’s § 2254 claim expired on April 23,
1997, rather than on April 24, 1997.
Accordingly, the district court’s dismissal is REVERSED and
FIRREA in Bledsoe and the Court’s express rejection of that application in Enventure V. As noted in the text, the statutory provisions at issue in Bledsoe and Enventure V included an independent section addressing when the statute of limitation began to run. See id. at 124 n.1. The statutory language used in § 2244(d) of AEDPA, which simply states that the period “runs from” a particular date, is more consistent with the language at issue in our cases finding Rule 6(a) to be applicable. E.g., Lawson, 600 F.2d at 465 (applying Rule 6(a) to limitation provision requiring that suit be filed “within one year from” the date of the violation).
g:\opin\97-10192.opn 14 the cause REMANDED for further proceedings consistent with this
opinion.
g:\opin\97-10192.opn 15