VanDuren v. Cockrell ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________
No. 00-20899
_____________________________________
RODNEY FLYNN VANDUREN,
Petitioner-Appellant
V.
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
(H-99-1804)
__________________________________________________
January 11, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.
PER CURIAM:*
Rodney Flynn Vanduren appeals the district court’s dismissal
of his 28 U.S.C. § 2254 habeas petition as barred by the one year
statute of limitations. Vanduren primarily argues that the
statute of limitations should not begin to run until the date on
which the mandate was issued in his case. This court granted
Vanduren’s Certificate of Appealability (“COA”) on the issues of
*
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this opinion should not be published and is not precedent except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.
(1) whether Vanduren properly presented the mandate issue to the
district court, thereby preserving it for appellate review; and
(2) whether Vanduren’s conviction did not become “final” for
purposes of the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) until the mandate was issued. Because we conclude that
the district court did not commit plain error, we affirm.
I.
On April 26, 1995, Vanduren was convicted of aggravated
robbery and sentenced to 42 years’ imprisonment. The Texas
intermediate Court of Appeals affirmed the trial court’s judgment
on October 5, 1995. After consideration of Vanduren’s pro se
brief, the intermediate Court of Appeals again affirmed
Vanduren’s conviction on October 2, 1997. Vanduren then filed a
motion for rehearing, which the Court of Appeals ultimately
denied on February 12, 1998. On April 29, 1998, Vanduren filed a
petition for discretionary review with the Texas Court of
Criminal Appeals, which that court rejected as untimely that same
day. Finally, on June 15, 1998, the intermediate Court of
Appeals issued its mandate. Vanduren filed his only application
for state habeas on December 2, 1998, which the Texas Court of
Criminal Appeals denied on February 10, 1999.
On June 7, 1999, Vanduren filed a petition for federal
habeas relief, alleging ineffective assistance of counsel and
-2-
various other claims attacking the validity of his conviction.1
The district court dismissed Vanduren’s habeas petition as barred
by the AEDPA’s one year statute of limitations.2 Ultimately, the
district court found that Vanduren’s conviction became final for
the purposes of the AEDPA on March 14, 1998, when time expired
for Vanduren to seek discretionary review of the Texas
intermediate Court of Appeals’ denial of his motion for
rehearing.3 Tolling the statute of limitations while his state
habeas application was pending, the district court determined
that Vanduren’s federal petition was untimely because it was
filed after May 25, 1999.
Vanduren then applied for a COA in the district court on
October 10, 2000, in which he argued to the district court for
the first time that the AEDPA’s one year statute of limitations
1
The AEDPA applies to Vanduren’s petition because the
petition was filed after the AEDPA’s enactment in 1996. See Lindh
v. Murphy, 521 U.S. 320, 324-36 (1997).
2
28 U.S.C. § 2244(d)(1)-(d)(1)(A) provides that “[t]he
limitation period shall run from the latest of . . . the date on
which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.”
3
The district court originally found that Vanduren’s
conviction became final on November 1, 1997, when time expired for
him to seek discretionary review of the Court of Appeals’ October
7, 1997, affirmance. Vanduren then filed a motion to alter or
amend judgment under Federal Rule of Civil Procedure 59 (e). The
district court granted the motion to the extent that it changed the
date the conviction became final to March 14, 1998, 30 days after
the date Vanduren’s motion for rehearing was denied. The district
court noted that this change to the limitations calculation did not
affect the outcome of its previous dismissal, as even using the
later date, Vanduren’s habeas petition was still untimely.
-3-
did not begin to run until the mandate was issued. The district
court rejected his application. Vanduren then filed a COA
application in this court, which was granted. This appeal
followed.
II.
Vanduren argues that the district court improperly
calculated the statute of limitations in his case. Specifically,
Vanduren asserts that his conviction was not “final” under the
AEDPA, and thus the statute of limitations did not begin to run,
until the date on which mandate was issued. Vanduren did not
raise this issue, however, until he applied for a COA in the
district court. Therefore, we review the district court’s
judgment at the most for plain error.
Plain error is (1) an error, (2) that is clear or obvious,
and (3) that affects the defendant’s substantial rights.4 Even
if all of these factors are met, however, this court will
exercise its discretion to correct the error only if the error
“seriously affects the fairness, integrity, or public reputation
of judicial proceedings.”5
In relevant part, the AEDPA provides that “[t]he limitation
4
See Jones v. United States, 527 U.S. 373, 389 (1999);
United States v. Williams, 264 F.3d 561, 574 (5th Cir. 2001);
United States v. Gonzalez, 250 F.3d 923, 930 n. 10 (5th Cir. 2001).
5
United States v. Olano, 507 U.S. 725, 732 (1993)
(internal citations omitted; see also Gonzalez, 250 F.3d at 930 n.
10 (internal citations omitted).
-4-
period shall run from the latest of . . . 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 The respondent
concedes that a conviction is not “final” for purposes of Texas
law until the mandate is issued.7 However, respondent maintains
that this designation is not controlling for purposes of
calculating the statute of limitations under the AEDPA. In
Caspari v. Bohlen,8 the Supreme Court analyzed the finality of a
conviction for purposes of determining retroactivity under Teague
v. Lane.9 The Court held that a conviction becomes 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.”10 Moreover, in Flanagan v. Johnson, this court
held that, based on Caspari, a Texas prisoner’s conviction became
final for AEDPA purposes 90 days after the Texas Court of
Criminal Appeals denied his petition for discretionary review,
when time expired for him to seek a writ of certiorari from the
6
28 U.S.C. § 2244(d)(1)-(d)(1)(A).
7
See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App.
2000).
8
510 U.S. 383, 390 (1994).
9
489 U.S. 288 (1989).
10
510 U.S. at 390.
-5-
United States Supreme Court.11
In addition, at least one circuit has rejected the position
that Vanduren advances here. In Wixom v. Washington, the Ninth
Circuit held that a decision terminating review, not the issuance
of the mandate, signifies “the conclusion of direct review” that
triggers the AEDPA’s limitation period.12 The Ninth Circuit
noted that even though Washington state courts consider a
conviction to be “final” only upon issuance of the mandate for
purposes of state law, the Ninth Circuit was bound by Congress’
definition of the term in calculating the statute of limitations
under the AEDPA.13 Petitioner cites no authority that supports
his proposition that the AEDPA’s statute of limitations does not
begin to run until mandate is issued.
In light of these authorities, it is far from “obvious” that
the issuance of the mandate determines when a conviction becomes
final for purposes of 28 U.S.C. § 2244(d)(1)(A), thereby
triggering the one year limitations period. Thus, the district
court’s decision that the limitations period began to run on
March 14, 1998, when time expired for Vanduren to seek direct
review of his conviction, was not an obvious error, if erroneous
at all.
11
154 F.3d 196, 197 (5th Cir. 1998).
12
264 F.3d 894, 897-98 (9th Cir. 2001).
13
Id. at 898 n. 3.
-6-
Therefore, we AFFIRM the district court’s dismissal of
Vanduren’s § 2254 petition.
-7-