Grooms v. Johnson, 99-10379

Decision Date14 December 1999
Docket NumberNo. 99-10379,99-10379
Citation208 F.3d 488
Parties(5th Cir. 1999) RICHARD WILLIAM GROOMS, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. Conference Calendar
CourtU.S. Court of Appeals — Fifth Circuit

Appeal from the United States District Court for the Northern District of Texas

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:

Richard William Grooms has appealed the district court's judgment dismissing his second federal application for a writ of habeas corpus as time-barred under 28 U.S.C. 2244(d). On appeal from the denial of federal habeas relief, this court reviews the district court's factual determinations for clear error and its legal conclusions are reviewed de novo. Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998).

Section 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), provides that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 2244(d)(1). Section 2244(d)(2) provides that "[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 shall not be counted toward any period of limitation under this subsection." 2244(d)(2).

Prisoners whose convictions have become final prior to the April 24, 1996, effective date of the AEDPA have one year after that date in which to file for 2254 relief. Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998); see United States v. Flores, 135 F.3d 1000, 1004-06 (5th Cir. 1998) ( 2255 case), cert. denied, 119 S. Ct. 846 (1999). Because Grooms's conviction became final prior to the effective date of the AEDPA, he had at least until April 24, 1997, to file his 2254 application.

In Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998), this court held that the 2244(d)(2) tolling provision applies to the one-year limitations period. Noting that 2244(d)(2) provides that the limitation period applies to periods during which a "State post-conviction proceeding or other collateral review" is pending, Grooms contends that the limitation period should tolled for the number of days during which his first federal habeas petition was pending during the year following April 24, 1996. Grooms argues that the quoted phrase should be read in the disjunctive and that, accordingly, his first federal habeas petition constituted "other collateral review" within the meaning of the statute.

Recently, in Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), this court held that the "a petition for writ of certiorari to the Supreme Court is not an application for 'State' review that would toll the limitations period." Accordingly, the period is not tolled during the ninety-day period within which a state habeas petitioner may file a petition for writ of certiorari with the Supreme Court. Id. In reaching this conclusion, the court adopted the reasoning of a Tenth Circuit case in which the court concluded that the word "State" in the phrase "State post-conviction proceeding or other collateral review" modifies both the phrase "post-conviction review" and the phrase "other collateral review." Ott, 192 F.3d 510, 513 n. 10 (citing Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999)). Ott is controlling in this case.

Grooms argues that he could not pursue state remedies...

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  • Alexander v. Johnson
    • United States
    • U.S. District Court — Southern District of Texas
    • July 12, 2001
    ...of a federal habeas petition that is subsequently dismissed without prejudice. See Duncan, 121 S.Ct. at 2129; accord Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir.1999). Thus, the deadline for pursuing federal habeas corpus relief had already expired prior to the Fifth Circuit's ruling and ......
  • Duncan v Walker
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    • U.S. Supreme Court
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    ...decision and the decisions of three other Courts of Appeals. See Jiminez v. Rice, 222 F.3d 1210 (CA9 2000); Grooms v. Johnson, 208 F.3d 488 (CA5 1999) (per curiam); Jones v. Morton, 195 F.3d 153 (CA3 1999). One other Court of Appeals has since adopted the Second Circuit's view. Petrick v. M......
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    ...filed application for State post-conviction or other collateral review" applies only to state court proceedings. See Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir.1999)(recognizing that the word "state" in 2244 modifies both the phrase "postconviction review" and "other collateral review");......
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    ...review and does not fall under the provisions of section 2244(d) (2). Duncan v. Walker, 121 S.Ct. 2120, 2129 (2001); Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999). There is no indication that Fenlon was subject to any state action that impeded him from filing his petition. 28 U.S.C. ......
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