Spicer v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20218
Summary Calendar
RAYMOND SPICER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-695
--------------------
October 5, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Raymond Spicer, Texas prisoner #696206, seeks a certificate of
appealability (“COA”) to appeal the dismissal of his habeas corpus
application as barred by the one-year statute of limitations in 28
U.S.C. § 2244(d). Because the district court’s denial of federal
habeas relief is based upon procedural grounds without analysis of
the underlying constitutional claims, “a COA should issue when the
prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial
*
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this opinion should not be published and is not precedent except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.
of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000).
Spicer’s state court conviction became final well before the
effective date of the AEDPA; thus, Spicer had until April 24, 1997,
to file his § 2254 petition. See Flanagan v. Johnson, 154 F.3d
196, 200 (5th Cir. 1998). Spicer did not file his § 2254 petition
until March 10, 1998. Accordingly, unless the one-year grace
period was tolled, Spicer’s petition is untimely.
Subsequent to the district court’s dismissal of Spicer’s
§ 2254 petition, this court held that a purported four-month delay
in receiving notice of the denial of a state habeas application
could constitute a rare and exceptional circumstance warranting the
equitable tolling of the one-year limitation period. Phillips v.
Donnelly, 216 F.3d 508, 511 (5th Cir.), rehearing granted and
opinion modified, 2000 WL 1191624 (5th Cir. 2000). Spicer contends
that he did not receive notice of the denial of his state habeas
application until sometime in early 1998. Spicer’s state habeas
application was denied on April 23, 1997. If it is established
that Spicer did not receive notice of the denial of his state
habeas application until sometime in early 1998, his § 2254
application filed on March 10, 1998, may be timely.
Spicer has shown that reasonable jurists would find that the
district court erred in dismissing his § 2254 petition as barred by
the one-year statute of limitations in § 2244(d). Slack, 120 S.Ct.
at 1604. His petition also presents at least one facially valid
constitutional claim. Hall v. Cain, 216 F.3d 518, 521 (5th Cir.
2000). A COA is GRANTED, the district court’s judgment of
dismissal is VACATED, and the case is REMANDED to the district
court for a determination as to when Spicer first received notice
of the denial of his state habeas application. Spicer has the
burden of establishing when he first received notice. Phillips,
216 F.3d at 511.
Moreover, the district court’s determination that Spicer’s
failure to notify the Texas Court of Criminal Appeals of his change
of address caused the limitations period to expire is clearly
erroneous. A factual finding is clearly erroneous “when although
there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948); Fed. R. Civ. P. 52(a). The state
record contains nothing showing that Spicer was mailed any
notification prior to his inquiry in January 1998. He did not
change his prior address from April to December 1997, and he
notified the court of the change in January 1998. Additionally,
there was no need for Spicer to inquire periodically of the habeas
application status; the form letter of the Clerk of the Court of
Criminal Appeals has a check-off statement indicating that the
petitioner would be notified when a decision was reached.
COA GRANTED; VACATED and REMANDED.