Harrelson v. Swan ( 2010 )

Case: 08-41112 Document: 00511138317 Page: 1 Date Filed: 06/10/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 10, 2010
No. 08-41112
Lyle W. Cayce
Clerk
JANET HARRELSON,
Petitioner-Appellant
v.
STEVE SWAN, Chief Probation Officer, Liberty-Chambers Counties Community
Supervision & Corrections Department,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:07-CV-742
Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Janet Harrelson, Texas prisoner # 02288819, filed a 28 U.S.C. § 2254petition challenging her conviction of forgery and tampering with a
governmental record. The district court denied Harrelson’s petition as untimely,
and this court granted Harrelson a certificate of appealability (COA) limited to
the issue whether the filing of nunc pro tunc proceedings constituted collateral
proceedings that tolled the limitation period under 28 U.S.C. § 2244(d)(2). We
now AFFIRM.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 08-41112
Harrelson was convicted in 2003 and sentenced in two judgments to
concurrent probated terms of incarceration. The conviction became final on
December 9, 2005, when the time expired for her to seek certiorari in the United
States Supreme Court from the denial of a petition for discretionary review by
the Texas Court of Criminal Appeals. See Roberts v. Cockrell, 319 F.3d 690, 693
(5th Cir. 2003). In accord with Texas state law governing probated sentences,
the terms of Harrelson’s community supervision commenced when the state
court issued its mandate shortly thereafter. See Surety Corp. of Am. v. State,
550 S.W.2d 689, 690 (Tex. Crim. App. 1977). The State then sought entry of
judgments nunc pro tunc to reflect that Harrelson’s sentence began upon the
date of the mandate’s issuance, and the trial court granted the motion.
Harrelson appealed, arguing that the nunc pro tunc judgments were void
because they implied that she had violated her probation. On March 7, 2007, the
state appellate court reversed because the nunc pro tunc judgments did not
merely correct a clerical error and were improper.
Harrelson filed her § 2254 petition challenging her conviction on October
18, 2007, more than one year after her conviction became final on December 9,
2005. The petition is untimely on its face unless the nunc pro tunc proceedings
tolled the limitations period of the Antiterrorism and Effective Death Penalty
Act (AEDPA).
Harrelson argues that the nunc pro tunc judgments reopened her
underlying conviction so that the conviction was not final until the state
appellate court corrected the judgments. She relies on 28 U.S.C. § 2244(d)(1)(A)
and Jimenez v. Quarterman, 129 S. Ct. 681 (2009). Jimenez held narrowly that
“where a state court grants a criminal defendant the right to file an out-of-time
direct appeal during state collateral review, but before the defendant has first
sought federal habeas relief, his judgment is not yet ‘final’ for purposes of
§ 2244(d)(1)(A).” Id. at 686. This court’s grant of COA did not encompass the
finality of Harrelson’s conviction under § 2244(d)(1)(A), but rather whether the
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nunc pro tunc proceedings constituted collateral review under § 2244(d)(2), a
very different statutory provision. We therefore lack jurisdiction to consider
Harrelson’s argument. See Carty v. Thaler, 583 F.3d 244, 266 (5th Cir. 2009).
Under § 2244(d)(2), the AEDPA’s limitations period is tolled for “[t]he 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[.]”
Harrelson, who is represented by counsel, does not provide a clear explanation,
with supporting authorities, of why the nunc pro tunc proceedings here meet the
definition of an “other collateral proceeding” that tolls the limitations period. We
may conclude, therefore, that Harrelson has inadequately briefed and abandoned
the only issue for which a COA was granted. See F ED. R. A PP. P. 28(a)(9);
Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); see also Beasley v.
McCotter, 798 F.2d 116, 118 (5th Cir. 1986) (noting that liberal construction is
not afforded to parties who are represented by counsel before this court).
Furthermore, even if we were to reach the issue we would conclude that
the nunc pro tunc proceedings did not toll the limitations period and that
Harrelson’s arguments to the contrary are unavailing. Harrelson argues that
the state trial court entered “new” judgments in the nunc pro tunc proceedings
that effectively tolled the limitations period until resolution of her appeal.
Merely because the trial court entered a subsequent judgment, however, does
not necessarily mean that the proceedings constituted collateral review of
Harrelson’s original judgments of conviction.
In order to toll the limitations period under § 2244(d)(2), the proceedings
at issue must at least have sought “review” of the judgments pursuant to which
Harrelson was in custody. See Moore v. Cain, 298 F.3d 361, 367 (5th Cir. 2002).
“Review” means, inter alia, “to reexamine judicially’” and “to go over or examine
critically or deliberately.” Id. (quotation and citation omitted) (emphasis in
original). In Texas, a nunc pro tunc entry of judgment is proper to correct
clerical errors in the judgment in order to reflect the judgment as it was actually
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ordered by the trial court at the time of trial but that for some reason was not
entered properly. Ex Parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988).
The State sought the nunc pro tunc judgments here to effectuate the mandate
after Harrelson’s conviction was affirmed on direct appeal. Although Harrelson
is correct that she was permitted to appeal from the trial court’s order, her right
of appeal was “limited to the validity of the nunc pro tunc entry.” Moore v. State,
446 S.W.2d 878, 879 (Tex. Crim. App. 1969). Consistent with that principle,
Harrelson’s appeal sought a ruling that the nunc pro tunc judgments were
erroneous because, rather than correcting a clerical error, they implied that she
had violated her probation. The state appellate court held only that the nunc
pro tunc judgments were “not the proper vehicles to effectuate this Court’s
mandates.” Harrelson v. State, 2007 WL 685558, at *2 (Tex. Ct. App. 2007).
Harrelson did not seek, nor did the state appellate court supply, review of
Harrelson’s original judgments. In fact, during the pendency of the nunc pro
tunc proceedings, Harrelson had sought review of her original conviction and
judgment in separate state habeas proceedings, which were ultimately
unsuccessful. The propriety of the original judgments through judicial
reexamination had nothing to do with the nunc pro tunc proceedings and appeal,
although the original judgments by necessity were germane to the case. See
Moore, 298 F.3d at 367. We conclude, therefore, that the nunc pro tunc
proceedings did not constitute “other collateral review” of Harrelson’s conviction
and did not toll the limitations period. See § 2244(d)(2).
The district court’s judgment is AFFIRMED.
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