Berryman v. Booker

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60324
Conference Calendar
BRIAN SCOTT BERRYMAN,
Petitioner-Appellant,
versus
WALTER BOOKER; MIKE MOORE, Attorney General,
State of Mississippi,
Respondent-Appellee.
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Appeals from the United States District Court
for the Northern District of Mississippi
USDC No. 1:00-CV-51-D-A1
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April 10, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Brian Scott Berryman, pro se Mississippi prisoner # 44499,
appeals the district court’s dismissal of his 28 U.S.C. § 2254petition as barred by the statute of limitations. We granted
Berryman a Certificate of Appealability (COA); we now affirm.
Although Berryman did not address the statute of limitations
in his brief on appeal, he did so adequately and successfully in
his COA brief. He has not waived that issue on appeal. See
*
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that this opinion should not be published and is not precedent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.
No. 00-60324
-2-
Williams v. Cain, 217 F.3d 303, 305 (5th Cir. 2000). We,
therefore, grant his motion to file a supplemental brief.
The essence of Berryman’s argument is that the one-year
statute of limitations provided for by 28 U.S.C. § 2244(d)(1) was
tolled until February 9, 1999, when the Mississippi Court of
Appeals rendered its opinion affirming the lower court’s
decision. Berryman’s argument assumes that the appeal was from
the February 6, 1998, trial court order disposing of Berryman’s
1992 and 1997 petitions. However, Berryman did not appeal that
order. Rather, the appeal was from the trial court’s March 19,
1998, order denying Berryman’s March 9, 1998, state petition for
postconviction relief.
Thus, the statute of limitations began to run on February 7,
1998, as there was no pending state habeas petition at that time.
It was then tolled when Berryman filed his March 9, 1998,
petition and remained tolled until February 9, 1999, the date the
Mississippi Court of Appeals rendered its decision. The
limitations period was thus tolled for 337 days, making
Berryman’s federal petition due on January 9, 1999. It was not
signed by Berryman until January 31, 1999, rendering it at least
22 days late.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED; JUDGMENT
AFFIRMED.