Salinas v. Dretke, 02-41721.

• Citation: 354 F.3d 425
• Decision Date: 07 January 2004
• Docket Number: No. 02-41721.,02-41721.
• Parties: Gary J. SALINAS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

354 F.3d 425

Gary J. SALINAS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 02-41721.

United States Court of Appeals, Fifth Circuit.

January 7, 2004.

COPYRIGHT MATERIAL OMITTED

Gary J. Salinas, Iowa Park, TX, pro se.

Karyl Krug, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, BARKSDALE and CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Gary Salinas's petition for writ of habeas corpus was denied as time-barred. Proceeding pro se, Salinas concedes that his petition was untimely when it was originally filed but argues that intervening events have rendered his petition premature, not late. Specifically, Salinas reasons that the Texas Court of Criminal Appeals effectively restored him to the direct review phase of his appeal when it granted him the right to file an "out-of-time" petition for discretionary review in that court, and that this action requires federal courts to measure the statute of limitations under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244, only from the moment at which the Court of Criminal Appeals subsequently declined to review the merits of his petition. As a result, Salinas avers, his petition should have been dismissed without prejudice. Concluding that the relief granted by the Court of Criminal Appeals had no effect on AEDPA's statute of limitations, we affirm.

I.

Salinas was charged with capital murder and attempted capital murder. A jury found him guilty and assessed two life sentences. The intermediate court of appeals affirmed in an unpublished opinion on July 20, 2000.

The next logical step in Salinas's appeal would have been the filing of a petition for discretionary review ("PDR") with the Court of Criminal Appeals. He had thirty days from July 20 in which to do so, or forty-five days in which to request an extension of time. See TEX.R.APP. P. 68.2(a), (c). This did not happen, however, because he spent the next seven months in jail, unaware that his conviction had been affirmed. His lawyer, Edward Garza, had prepared a letter notifying him of the result, but neglected to mail it.

It was not until March 6, 2001 — in response to an inquiry from Salinas — that Garza notified him that the appeal had been unsuccessful and that his court-appointed duty to represent him was now terminated. In response to a second letter, Garza told Salinas that, time restrictions notwithstanding, he did not think Salinas possessed an issue meriting discretionary review and that Salinas's only remedy was "perhaps" to file a habeas petition.

Playing the cards he was dealt, Salinas filed a PDR and a motion for extension of time on April 7, 2001, but the PDR was dismissed as time barred on April 19, 2001. He filed a state application for habeas relief, arguing in part that his appellate counsel had failed to advise him timely of his right to file a PDR pro se. Following a remand to determine when Garza had informed Salinas that his conviction had been affirmed, the Court of Criminal Appeals denied Salinas's application for habeas relief without written order on March 13, 2002.

Salinas filed a federal habeas petition on April 28, 2002. The state asked the district court to dismiss the petition as time-barred. AEDPA provides that "[a] 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." See 28 U.S.C. § 2244(d)(1). Under the present facts, this period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." See 28 U.S.C. § 2244(d)(1)(A).¹

In Texas, a PDR is considered to be part of the direct review process, which ends when the petition is denied or when the time available for filing the petition lapses. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir.2003). Salinas's appeal was affirmed on July 20, 2000, and he had thirty days from that date to file a PDR with the Court of Criminal Appeals. Because August 19, 2000, was a Saturday, he had until August 21 to file a PDR and until August 21 of the following year to seek federal habeas relief. With eighteen days remaining on the federal clock, he filed a state application for habeas relief, an event that tolls the federal statute of limitations. See 28 U.S.C. § 2244(d)(2). Thus, when his state habeas application was denied by the Court of Criminal Appeals on March 13, 2002, he had eighteen days to file a federal habeas petition. The petition was not filed, however, until April 28.

A magistrate judge recommended that the district court equitably toll limitations, but the district court disagreed and dismissed Salinas's petition on November 18, 2002. On the same day, and without knowledge of the district court's action, Salinas mailed a motion to the district court informing it of the central fact in this appeal: Acting on its own motion on October 30, 2002, the Court of Criminal Appeals had reconsidered the state habeas petition and decided to award Salinas the right to file an "out-of-time" PDR. The effect of this was to "return [Salinas] to the point at which he can file a petition for discretionary review.... For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the Court of Appeals' decision had been rendered on the day the mandate of the Court of Criminal Appeals issues." Ex Parte Salinas, No. 74,462, at 2 (Tex.Crim.App. 2002).

Thus, under state law, Salinas was restored to the position of a recently convicted felon, eligible to pursue a form of direct review in the Court of Criminal Appeals.² In light of this development, his letter to the district court asked that it dismiss his federal habeas application, without prejudice, for failure to exhaust state remedies. When the court received that letter several days later, it concluded that it was without jurisdiction to grant the requested relief, because it had already ruled on the state's motion to dismiss the petition as time-barred.

II.

The question is whether, as a corollary to the revival of Salinas's right to file a PDR, AEDPA's one-year statute of limitations has not yet run on his petition. If it has run, we must also consider whether the district court abused its discretion in declining equitably to toll limitations.

A.

The state argues that the issue is before us pursuant to an improvidently granted certificate of appealability ("COA"). The district court dismissed Salinas's petition as untimely before it knew of the Court of Criminal Appeals' decision to grant the "out-of-time" PDR, and as a result, the state argues, the district court did not have an opportunity to consider the issue we decide today. Citing United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992), the state contends that the issue therefore was not preserved for appeal.

We disagree. Salinas's letter informing the district court of the action taken by the Court of Criminal Appeals and asking for a dismissal without prejudice was received within ten days of the entry of judgment. It is therefore properly construed as a Federal Rule of Civil Procedure 59(e) motion to alter or amend the judgment, and the issue was properly before the district court.³ As a result, we have jurisdiction to review Salinas's claims.

B.

We must consider the effect the Court of Criminal Appeals' order has on AEDPA's statute of limitations, a question of law we review de novo. Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir.2003). When the Court of Criminal Appeals grants the right to file an "out-of-time" PDR, it restores the petitioner to the position he was in when he first possessed the right to petition for discretionary review.⁴ A defendant who still has the right to file a PDR is considered to be in the midst of the direct review process. Roberts, 319 F.3d at 693.

On this basis, Salinas urges that the statute of limitations could not have lapsed in April 2002, because the prescription period should have begun only on the conclusion of direct review, see 28 U.S.C. § 2244(d)(1)(A), and direct review once again was pending on November 18, 2002, when the district court dismissed his petition. Thus, Salinas argues, his conviction was "de-finalized," and the statute of limitations — though legitimately initiated in August 2000 — should be deemed to have begun again with the rejection of the PDR in January 2003.

We disagree. On its face, AEDPA provides for only a linear limitations period, one that starts and ends on specific dates, with only the possibility that tolling will expand the period in between. See § 2244(d)(1), (2). So long as the petitioner is being held pursuant to the same state court judgment, nothing in AEDPA allows for a properly initiated limitations period to be terminated altogether by collateral state court action. Rather, the statutory framework only provides for the tolling of limitations during the pendency of state collateral review. See § 2244(d)(2).

Thus, the issue is not whether the Court of Criminal Appeals' action revitalized Salinas's limitations period, but rather whether the existence of that potential relief prevents the limitations period from starting to run until after that level of appeal has been denied. That is to say, we need to determine whether, in Texas, the mechanism by which Salinas obtained the right to file an "out-of-time" PDR is part of the direct or collateral review process. If that relief comes as a result of direct review, there would be no basis for limitations even to begin running until the Court of Criminal Appeals has finalized the judgment by declining to grant relief on that level of appeal. If, on the other hand, an "out-of-time" PDR is awarded only as a result of the collateral review process,...