1

United States Court of Appeals

Fifth Circuit

FILED

August 27, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 03-40527

_______________________

 

FREDDIE JAMES FOREMAN,

Petitioner-Appellant

v.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

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Appeal from the United States District Court

for the Eastern District of Texas

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Before DeMOSS, STEWART and PRADO, Circuit Judges. 

EDWARD C. PRADO, Circuit Judge:

In this case we address whether “direct review” for AEDPA

limitations purposes includes Petitioner’s timely-filed state

appeal, which the state court lacked jurisdiction to consider. 

The district court concluded that Petitioner’s appeal was not

“direct review” and thus dismissed Petitioner’s habeas petition

as time-barred. We disagree and so reverse.

Background Facts and Procedural History

Acting under an agreement, in 1993 Petitioner-Appellant

Freddie James Foreman pleaded guilty in Texas state court to

possession of a controlled substance. He received deferred

adjudication and was placed on probation (also called “community
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supervision”) for ten years. In November 1999, the state moved

to revoke Foreman’s probation for delivery of a controlled

substance. Over Foreman’s “not true” plea, on May 15, 2000, the

state court revoked Foreman’s probation and adjudicated him

guilty of the 1993 charge. The court then sentenced Foreman to

27 years in prison.

On June 12, 2000, Foreman timely filed a notice of appeal

with the Texas intermediate appellate court. Foreman filed his

appellate brief on April 23, 2001 in which he argued that the

evidence did not support the trial court’s finding that he had

violated his probation. On July 25, 2001, the appeals court

dismissed Foreman’s appeal for “want of jurisdiction,” concluding

that, under Texas Code of Criminal Procedure article 42.12 §

5(b), the court lacked jurisdiction to consider issues relating

to Foreman’s revocation. Foreman then timely filed a petition

for discretionary review (“PDR”) with the Texas Court of Criminal

Appeals (“CCA”). The CCA denied this petition on October 30,

2001. Subsequently, Foreman filed a state habeas petition on

March 25, 2002; the CCA denied Foreman’s habeas petition on June

12, 2002.

Foreman’s 28 U.S.C. § 2254 habeas petition followed on

August 6, 2002. The district court referred this petition to a

magistrate judge. The magistrate judge recommended dismissing

Foreman’s petition as untimely because, contrary to the

limitations contained in the Antiterrorism and Effective Death
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Penalty Act (“AEDPA”), it was filed more than one year after his

conviction became “final.” The magistrate judge concluded that

under Texas law, specifically Olivo v. State, 918 S.W.2d 519

(Tex. Crim. App. 1996), the dismissal of Foreman’s appeal for

want of jurisdiction “had the same effect as if the appeal never

existed.” Because he treated the dismissed appeal as if it had

never been filed, the magistrate judge found that Foreman’s

conviction became final for habeas limitations purposes on June

14, 2000 – 30 days after Foreman’s parole was revoked. Under

this calculation, Foreman’s habeas limitations period expired one

year later. Because it was filed after that date, Foreman’s

state habeas did not toll the limitations period. Finding the

petition therefore untimely, the magistrate judge recommended

dismissing Foreman’s petition. Foreman objected to the

magistrate judge’s report, but the district court accepted it

after conducting a de novo review. The district court dismissed

Foreman’s habeas petition as time-barred, but granted Foreman a

Certificate of Appealability on the time-bar issue. We review

the district court’s decision de novo. See Giesberg v. Cockrell,

288 F.3d 268, 270 (5th Cir. 2002).

Did the district court err by dismissing Foreman’s habeas

petition as time-barred?

The issue before us involves the classification and effect

of Foreman’s state appeal. Therefore, to evaluate the parties’
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arguments, we must first examine Foreman’s state proceedings. In

his state appeal, Foreman challenged both the determination that

he violated his probation and the related adjudication of guilt. 

This adjudication occurred under TEX. CODE CRIM. PROC. art. 42.12,

which provides, in relevant part:

On violation of a condition of community supervision

imposed under Subsection (a) of this section, the

defendant may be arrested and detained as provided in

Section 21 of this article. The defendant is entitled to

a hearing limited to the determination by the court of

whether it proceeds with an adjudication of guilt on the

original charge. No appeal may be taken from this

determination . . . .

TEX. CODE CRIM. PROC. art 42.12 Sec. 5(b).

 Texas courts have interpreted this appeal provision to mean

that a defendant “may not raise on appeal contentions of error in

the adjudication of guilt process.” Connolly v. State, 983

S.W.2d 738, 741 (Tex. Crim. App. 1999). Given this law, the

parties agree that the Texas court correctly dismissed Foreman’s

appeal. However, the parties dispute what conclusions can be

drawn from this dismissal – specifically whether, for AEDPA

limitations, an appeal can be considered “direct review” when the

state court had no jurisdiction to review that appeal.

AEDPA provides that a petitioner may file a habeas petition

within one year of “the date on which the judgment became final

by the conclusion of direct review or the expiration of the time
1There are additional methods of starting the limitations

period. See 28 U.S.C. § 2244(d)(1). The parties agree that only

finality is relevant in this case.

2The parties agree that Foreman could have appealed other

aspects of his conviction, such as his sentence.

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for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).1 This

provision supplies two alternate methods under which a conviction

can become final: direct review can end or the time to pursue the

direct review can expire. Thus, because it triggers the

limitations period, the date a judgment becomes final is often

critical to a petitioner’s federal habeas petition.

The date is critical here. As the district court noted, if

Foreman’s appeal to the state intermediate court and his PDR to

the CCA are considered “direct review,” then his habeas petition

is timely. If, on the other hand, his state appeal is excluded,

the limitations period began running thirty days after the state

court judgment, when his time to appeal ran out.2 Therefore,

whether Foreman’s appeal was “direct review” determines when his

judgment became final and whether his habeas petition was timely.

Direct review, which includes a petition for certiorari to

the Supreme Court, occurs “when the Supreme Court either rejects

the petition for certiorari or rules on its merits.” Roberts v.

Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). If no petition is

filed, then we examine the second method of creating finality,

“the expiration of the time for seeking such review.” Id. If a
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criminal defendant has pursued his direct appeal through the

highest state court, then this period includes the 90 days for

filing a petition for certiorari to the Supreme Court. Id. If

not, then it includes the time for seeking further state-court

direct review. Id. At the conclusion of these periods, the

judgment becomes final.

When addressing finality, we have previously discussed the

intersection of AEDPA and state law. In so doing, we confirmed

that AEDPA, not state law, determines when a judgment is final

for federal habeas purposes. Roberts, 319 F.3d at 694. In

Roberts v. Cockrell, we held that the petitioner’s judgment

became final when the time ran out for him to file a PDR, not the

later date when the appeals court issued its mandate. Id. 

Although under Texas law the judgment was not final until the

court issued its mandate, we concluded that the Texas rules did

not control AEDPA review. Id. Thus, the petitioner’s conviction

became final for AEDPA purposes before his conviction was final

under state law. Id. at 694-95. We noted that we did not look

to state law to make this decision because AEDPA provides its own

definition of finality. Id. at 694.

Yet, as even the Roberts court conceded, some consideration

of state law is inevitable when analyzing ADEPA limitations. 

Roberts, 319 F.3d at 693-94; see also Salinas v. Dretke, 354 F.3d

425 n.5 (5th Cir. 2004). In Salinas v. Dretke, the CCA granted
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the petitioner the right to file an out-of-time PDR. Salinas,

354 F.3d at 428. Under state law, granting this right “restores

the petitioner to the position he was in when he first possessed

the right to petition for discretionary review. A defendant who

still has the right to file a PDR is considered to be in the

midst of the direct review process.” Id. at 429 (footnote

omitted). The question before us in Salinas was whether the

CCA’s grant of this right to the petitioner affected his AEDPA

time limits. We concluded that the effect of the CCA’s actions

depended on whether the CCA awarded this relief as part of the

direct review process or as part of the collateral review

process. Id. at 430. If the CCA’s grant was part of direct

review, then the AEDPA clock did not begin to run until this

direct review was complete. Id. To determine whether the CCA

could have granted this relief as part of direct review or could

only have granted it under collateral review, we necessarily

examined state law. Id. at 430 n.5. We determined that the CCA

could only have granted this relief on collateral review. Id. at

430. Based on this determination, we concluded that, although

the pendency of the out-of-time PDR, like any other collateral

review, would toll the limitations period, the CCA’s grant of

permission to file a late PDR did not undo the running of AEDPA

deadlines. Id. In other words, in Salinas we held that,

although a PDR is part of the direct review process, the grant of
3These cases resolve one of Respondent’s contentions about

the state court’s lack of jurisdiction. Citing Olivo v. State,

918 S.W.2d 519 (Tex. Crim. App. 1996), Respondent originally

argued that state courts treat an appeal filed without

jurisdiction as if it had never been filed and that, under AEDPA, 

federal courts are obligated to give the same effect to a

jurisdictionally-deficient appeal. Regardless of the validity of

Respondent’s Olivo reading, we note that Salinas mandates that we

are not bound by the state court’s view of an appeal. Further,

in granting Foreman’s Certificate of Appealability, the district

court stated that, “an argument may be made that ‘finality’ for

purposes of 28 U.S.C. § 2244(d)(1)(A) should not hinge on how

Texas courts decide an appeal but on the conclusion of the direct

review process or the expiration of the time for seeking review.”

When expressed this way, the issue is controlled by Roberts.

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permission to file a late PDR is not part of direct review. 

Thus, the grant did not affect the finality of petitioner’s

conviction for AEDPA purposes. Id. at 431. In sum, we required

an examination of state law (to determine whether particular

relief was available on direct appeal or only as part of the

state habeas proceeding), but were not controlled by the effects

of the state proceeding (namely, that under state law the

petitioner had been restored to the position of someone on direct

review).3

We also are aided by Artuz v. Bennett, 531 U.S. 4 (2000), a

Supreme Court case addressing a fairly analogous situation under

New York law. Artuz addressed § 2244's tolling provision, which

tolls the limitations period for the time that a “properly filed

application for State post-conviction or other collateral review”

was pending. Id. at 5 (quoting 28 U.S.C. § 2244(d)(2)). In

Artuz, the state argued that this provision did not apply to
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Artuz’s attempts to obtain state post-conviction relief because

his state filing contained claims that were procedurally barred

under New York law. Id. at 7. As support, the state argued that

an application was not properly filed “unless it complies with

all mandatory state-law procedural requirements that would bar

review of the merits of the application.” Id. at 8. 

The Supreme Court rejected this argument. Instead, the

Court distinguished an analysis of when a petition was properly

filed from an analysis of the petition’s merits:

an application is "properly filed" when its delivery and

acceptance are in compliance with the applicable laws and

rules governing filings. These usually prescribe, for

example, the form of the document, the time limits upon

its delivery, . . . the court and office in which it must

be lodged, and the requisite filing fee. . . . In some

jurisdictions the filing requirements also include, for

example, preconditions imposed on particular abusive

filers . . . or on all filers generally. . . . But in

common usage, the question whether an application has

been "properly filed" is quite separate from the question

whether the claims contained in the application are

meritorious and free of procedural bar.

Id. at 8-9 (citations and footnote omitted). 

Here, Respondent asks us to read the phrase “valid” into

AEDPA’s “direct review” language by asserting that direct review

can only mean jurisdictionally-valid review. We decline to reach

this conclusion. First, the reasoning in Artuz cautions against

reading phrases or merits-related requirements into AEDPA’s

language. Second, Salinas encourages us to look to the actual

state processes that a petitioner has used. So, following
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Salinas, we ask whether Foreman engaged the Texas direct review

process. Because Foreman filed a timely appeal in the

intermediate court and timely filed a PDR, we conclude that he

participated in direct review. Foreman’s conviction thus became

final for AEDPA purposes 90 days after the CCA denied his PDR. 

See Roberts, 319 F.3d at 694. 

Other considerations also support this result. First, the

parties agree that Foreman could have appealed some aspects of

his case, such as his sentence. It would be unnecessarily

complicated to make a petitioner’s AEDPA timeline depend on the

content of his state appellate briefs. Additionally, a ruling

that Foreman’s appeal was not direct review would create an

incentive for petitioners to file premature federal habeas

petitions. For example, in this case, under Respondent’s theory,

Foreman’s AEDPA period had run before the intermediate appellate

court dismissed his appeal. Ruling as Respondent requests, then,

would give prisoners like Foreman reason to file premature

federal habeas petitions for fear of the consequences of an

appellate court dismissing an appeal for want of jurisdiction. 

We see no reason to create such an incentive, which runs counter

to AEDPA’s “purpose to further the principles of comity,

finality, and federalism.” Williams v. Taylor, 529 U.S. 420, 436

(2000).

Thus, we simply ask whether Foreman filed a timely appeal in
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the state court system. We conclude that he did and that his

state appeal constituted direct review. Therefore, Foreman filed

his habeas petition within AEDPA’s limitations period. Our

holding here is limited – merely that Foreman’s timely-filed

appeal was direct review. Accordingly, we reverse the district

court’s dismissal of Foreman’s petition as time-barred and remand

the case to the district court to consider its merits.

REVERSED AND REMANDED.