Robert Brown v. Rick Thaler, Director

455 F. App'x 401
Court of Appeals for the Fifth Circuit·Decided December 13, 2011·No. 10-20095·Unpublished·Cited by 6 cases

Opinions

JERRY E. SMITH, Circuit Judge: *

Robert Brown appeals the dismissal of his petition for writ of habeas corpus as barred by the one-year application deadline. We affirm.

I.

Brown was convicted in state court of aggravated robbery and impersonation of a public servant. After the intermediate court of appeals affirmed, he filed a petition for discretionary review (“PDR”) with the Texas Court of Criminal Appeals (“CCA”), the contents of which challenged only the robbery conviction.1 When his attorney filed the PDR, however, he affixed the appellate docket number designated for the impersonation conviction instead of the robbery conviction. Brown did not attempt to amend the PDR to correct the error,2 so the CCA never for[404] mally accepted a PDR for the robbery conviction.3 The deadline to file a PDR for that conviction passed on March 16, 2007, and the mandate of the intermediate court of appeals issued on May 7, 2007.

Brown filed for state habeas relief on his robbery conviction on August 11, 2008. The CCA denied the application on December 17, 2008.4 On February 6, 2009, Brown filed a federal habeas petition challenging his robbery conviction. The state moved for summary judgment on the ground that the petition was time-barred5 because the robbery conviction became final on March 16, 2007, and the federal petition was not filed within one year of that date.6 The district court agreed and granted summary judgment. Brown appeals arguing that (1) his petition is not time-barred, because it was filed within one year of the date on which his state conviction became final; and (2) if we hold that his conviction did become final such that he has failed to meet the one-year deadline, he is entitled to equitable tolling.7

II.

We review de novo the dismissal of a habeas petition as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Krause v. Thaler, 637 F.3d 558, 560 (5th Cir.2011). “In a habeas corpus appeal, we review the district court’s findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court’s decision as the district court.” Beazley v. Johnson, 242 F.3d 248, 255 (5th Cir.2001) (citation and quotation marks omitted).

The district court did not err in concluding that Brown’s robbery conviction became final on March 16, 2007, and that his federal habeas petition was accordingly time-barred. A state conviction becomes final under AEDPA when there is no further “ ‘availability of direct appeal to the state courts.’” Jimenez v. Quarterman, 555 U.S. 113, 119, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009) (quoting Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994)). “Until that time, the process of direct review has not come [405] to an end and a presumption of finality and legality cannot yet have attached to the conviction and sentence.” Id. at 119-120, 129 S.Ct. 681 (internal quotation marks omitted). A petitioner may seek review in the CCA by filing a PDR within thirty days after the intermediate court renders judgment. Tex.R.App. P. 68.1, 68.2(a). If he elects not to file a PDR, his conviction becomes final under AEDPA at the end of the thirty-day period — that is, “when the time for seeking further direct review expired.” Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir.2003).

Because Brown received an extension to file a PDR, the time in which he could no longer seek further direct review expired on March 16, 2007. Accordingly, his one-year deadline to file a federal habeas petition was March 17, 2008. Because he did not file for state post-conviction review of the robbery conviction until after that date, there is no statutory tolling.8 His federal petition, dated February 6, 2009, is thus barred by the AEDPA statute of limitations.

Against this conclusion, Brown argues that we are bound to regard his PDR as having been denied subsequently, on August 22, 2007. If that is correct, his state habeas petition would then have been filed before the one-year federal deadline had elapsed, and as a result of AEDPA’s statutory tolling, his federal habeas petition would have been timely.9 This argument depends on an order, issued by the state trial court handling the habeas petition on his robbery conviction, stating in pertinent part, “[T]he contents of official trial court records and appellate record in cause number 990261 [the robbery case] demonstrate that ... [o]n August 22, 2007, the Court of Criminal Appeals refused Applicant’s petition for discretionary review.”

That statement is item four in a document prepared by the state and submitted as “Proposed Findings of Fact, Conclusions of Law.” By signature of the trial judge, it became a finding of that court. The district court recommended that relief be denied and transmitted its findings to the CCA, see TexCode Crim. P. 11.07 § 3(d), which denied the petition “without written order on findings of the trial court” on December 17, 2008. That language indicates that the CCA decided to “deny relief upon the findings and conclusions of the hearing judge,” seeing no basis to proceed further. See id. § 5.

We conclude that the state district court’s finding that a PDR was denied in the robbery case in August 2007 was not an interpretation of the operation of state procedural rules. There is no analysis or explanation that would allow that single statement, in what otherwise is a listing of procedural history, to be considered as anything other than a bare statement of a fact. Federal habeas courts are to accept a state court’s factual finding unless it is “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

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Robert Brown v. Rick Thaler, Director, 455 F. App'x 401 (5th Cir. 2011).

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