Goodwin v. Dretke ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 16, 2004
Charles R. Fulbruge III
No. 02-41690 Clerk
GILBERT ROY GOODWIN,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(1:02-CV-578)
Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
This appeal is before us following our remand to the district
court to rule on the State’s time-bar claim. Gilbert Goodwin,
Texas prisoner # 749472, appeals, pro se, the denial of his 28
U.S.C. § 2254 habeas petition, which claims his parole-denial
violated the United States Constitution’s Ex Post Facto Clause.
When the petition was first before the district court, and because
the State had not been served, the district court did not address
the State’s time-bar claim, which it raises here: whether
Goodwin’s petition was time-barred under 28 U.S.C. §
*
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this opinion should not be published and is not precedent except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.
2244(d)(1)(D). Accordingly, because the record was not sufficient
for us to decide that issue, we retained jurisdiction, but remanded
to the district court for it to decide the State’s time-bar claim
under § 2244(d)(1)(D). Goodwin v. Dretke, 02-41690 (5th Cir. 29
June 2004) (Goodwin I). Apparently applying § 2244(d)(1)(A)
instead, the district court concluded Goodwin’s claim was time
barred. We REMAND for a determination of the time-bar claim under
§ 2244(d)(1)(D).
I.
In 1993, Goodwin was convicted in Texas of felony aggravated
sexual assault. Goodwin has been denied parole twice. On 25 June
2002, more than a year after the second parole-denial, Goodwin
filed a state habeas application, claiming: the Board of Pardons
and Paroles denied him parole using a procedure enacted after the
commission of his offense, thereby violating the Ex Post Facto
Clause. Without written order, the Court of Criminal Appeals
denied his application on 14 August 2002.
Goodwin’s federal habeas petition was filed later in August
2002. As noted, the State was not served in district court and,
therefore, did not raise the time-bar claim now at issue. The
district court denied habeas relief. On appeal, the State raised
the time-bar claim. In Goodwin I, we remanded for a determination
on that issue. The district court concluded the petition is time-
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barred. In so ruling, it concluded that Goodwin is not entitled to
equitable tolling.
II.
Because Goodwin filed his § 2254 habeas petition after the
effective date of the Antiterrorism and Effective Death Penalty Act
(AEDPA) that Act controls. E.g., Scott v. Johnson, 227 F.3d 260,
262 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001). Under
AEDPA, § 2244(d), there is a one-year limitations period for
federal petitions brought by state prisoners. This period runs
from the latest of: under subpart (A), “the date on which the
judgment became final”; under subpart (B), “the date on which the
impediment to filing an application created by [unconstitutional]
State action [was] removed”; under subpart (C), “the date on which”
the Supreme Court “initially recognized” the constitutional right,
“if the right ... [is] made retroactively applicable to cases on
collateral review”; or under subpart (D), “the date on which the
factual predicate of the claim ... could have been discovered
through the exercise of due diligence”. 28 U.S.C. § 2244(d)(1)(A)-
(D). The period is tolled while a state habeas petition for the
claim is pending. 28 U.S.C. § 2244(d)(2).
As discussed in Goodwin I: the State asserts, and Goodwin
does not dispute, that, for limitations purposes, § 2244(d)(1)(D)
governs the timeliness vel non of the filing of his petition; our
sister circuits have applied § 2244(d)(1)(D) to claims predicated
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on parole decisions; and we adopted that approach. Goodwin I at 4.
Accordingly, the one-year filing period began to run on the date
Goodwin could have “discovered” the “factual predicate of [his]
claim” for the parole-denial “through the exercise of due
diligence”. 28 U.S.C. § 2244(d)(1)(D). Depending upon when
Goodwin’s one-year limitations period began, that period was
possibly tolled from 25 June 2002 to 14 August 2002, while his
state habeas petition was pending. 28 U.S.C. § 2244(d)(2).
In May 1991, when Goodwin committed the sexual assault,
parole decisions were made by panels composed of three Board
members and required a majority vote. TEX. CRIM. PROC. art. 42.18 §
7(e) (West 1991). A new procedure, enacted in 1995, requires the
votes of two-thirds of the entire Board (15 members) to grant
parole. TEX. GOV’T CODE ANN. § 508.046 (West 2001).
The new procedure was used for both of Goodwin’s parole-
denials. Goodwin does not contend he would have been granted
parole in his first hearing under the former procedure. Rather,
Goodwin contends: the voting records from his June 2001 parole-
denial indicate that all three members who would have been assigned
to review him under the former procedure voted in favor of parole;
therefore, he would have been granted parole under that procedure.
Accordingly, Goodwin claims the application of the new procedure to
his 2001 parole proceeding violates the Ex Post Facto Clause
because it increased his sentence. Therefore, Goodwin asserts that
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his habeas claim did not arise until his second parole-denial in
June 2001. In the alternative, Goodwin requests equitable tolling.
Goodwin I held that, in order to avoid deciding the
substantive law of the Ex Post Facto Clause, the time-bar issue had
to be decided first. Goodwin I at 6. Along that line, various
collateral factual issues needing to be decided were discussed, for
resolution on remand to the district court. Id. at 6-8.
Pursuant to the Goodwin I remand, the district court found
that Goodwin’s habeas claim arose on 7 June 2001, the date of his
second parole denial, rather than on 4 February 1999, the date of
his first parole denial. Citing Roberts v. Cockrell, 319 F.3d 690
(5th Cir. 2003), the district court determined: the judgment
became final when the Parole Board reached its decision on 7 June
2001; and the date Goodwin was notified of his parole denial was
irrelevant. When a judgment becomes final is the relevant inquiry
under subpart (A), not subpart (D). Likewise, Cockrell, cited by
the district court, involves application of subpart (A).
Therefore, we assume the district court assessed the timeliness of
Goodwin’s claim under subpart (A).
The law of the case from Goodwin I, however, is that
subpart(D), not subpart (A), applies to this claim because it is
predicated on a parole hearing. In order to make a determination
under subpart (D), the district court must determine “the date on
which the factual predicate of the claim could have been discovered
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by due diligence”. 28 U.S.C. § 2244(d)(1)(D). That is, the
district court will have to find when Goodwin could have
discovered, by the exercise of due diligence, his second parole
application had been denied.
As noted, Goodwin I describes other factual issues that must
be decided by the district court in deciding the time-bar claim,
such as when Goodwin’s federal habeas petition was filed. (On
remand, the district court assumed it was filed on 20 August 2002.
Goodwin v. Director, TDCJ-CID, 1:02-CV-578, at 2 n.1 (E.D.Tex. 26
Oct. 2004).) Of course, the district court may decide that other
issues must be resolved as well. In this regard, the district
court may decide additional evidence may be filed and an
evidentiary hearing is required, especially in the light of the
State’s not being able earlier to file evidentiary material in
district court because it was not served before Goodwin’s habeas
petition was denied by the district court.
As also noted, the district court also determined on remand
that Goodwin was not entitled to equitable tolling. Following the
district court’s decision on this second remand, when this matter
is returned to our court for review, Goodwin may, of course,
challenge that no-equitable-tolling decision.
III.
For the foregoing reasons, we retain jurisdiction of this
appeal, but REMAND to the district court for the following
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determinations: (1) applying § 2244(d)(1)(D), the date on which
Goodwin could have discovered, using due diligence, that he was
denied parole, following his second parole hearing; and (2) whether
Goodwin’s petition is time-barred. (On 9 November 2004, Goodwin
filed a petition for panel rehearing, which we consider a motion to
remand. That portion of Goodwin’s motion requesting remand for a
determination under § 2244(d)(1)(D) is DENIED as moot. That
portion of Goodwin’s motion concerning equitable tolling is DENIED
as premature.)
REMANDED
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