REVISED August 22, 2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50672

GODFREY AARON MARK,

Petitioner-Appellant,

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Texas

Before GARWOOD, ELROD, and SOUTHWICK, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Godfrey Aaron Mark, Texas prisoner # 1237559, appeals the dismissal of

his petition for habeas corpus under 28 U.S.C. § 2254 challenging his Texas

conviction for aggravated robbery. The district court dismissed Mark’s habeas

petition as time-barred. This court granted a certificate of appealability (COA)

to review the district court’s timeliness determination. For the reasons that

follow, we conclude that Mark’s petition was timely, and therefore REVERSE

the judgment of the district court and REMAND the petition for further

consideration.

United States Court of Appeals

Fifth Circuit

F I L E D

July 6, 2011

Lyle W. Cayce

Clerk
No. 09-50672

2

After Mark pleaded guilty to aggravated robbery, the state trial court

sentenced Mark to 25 years of imprisonment. Although Mark appealed his

conviction and sentence, he later filed a motion to voluntarily dismiss his appeal.

On February 22, 2005, the Court of Appeals granted his motion and entered a

judgment dismissing the appeal. Mark did not seek review by the state’s highest

court, the Texas Court of Criminal Appeals (CCA). Subsequently, Mark sought

postconviction relief in state court. On February 21, 2006, he filed a state

habeas petition, which was denied by the CCA on April 9, 2006. Mark then filed

the instant federal habeas petition on May 4, 2006.

When a district court denies a habeas petition on procedural grounds, our

review is de novo. Larry v. Dretke, 361 F.3d 890, 893 (5th Cir. 2004). Under the

Antiterrorism and Effective Death Penalty Act (AEDPA), a state prisoner must

file his federal habeas petition before the expiration of the one-year statute of

limitations. 28 U.S.C § 2244(d)(1). A properly filed state habeas petition tolls

the statute of limitations as long as it remains pending. Id. § 2244(d)(2). The

one-year period begins to run from “the date on which the [state court] judgment

became final by the conclusion of direct review or the expiration of the time for

seeking such review.” Id. § 2244(d)(1)(A). Thus, “because it triggers the

limitations period, the date a judgment becomes final is often critical” in

assessing the timeliness of a federal habeas petition. Foreman v. Dretke, 383

F.3d 336, 338 (5th Cir. 2004).

A state conviction becomes final under AEDPA when there is no further

“‘availability of direct appeal to the state courts.’” Jimenez v. Quarterman, 555

U.S. 113, 129 S. Ct. 681, 685 (2009) (quoting Caspari v. Bohlen, 510 U.S. 383,

390 (1994)). “Until that time, the process of direct review has not come to an end

and a presumption of finality and legality cannot yet have attached to the

conviction and sentence.” Id. at 685-86 (internal quotation marks omitted).

Under Texas law, a petitioner may seek review in the Court of Criminal Appeals

by filing a petition for discretionary review (PDR) within 30 days after the
No. 09-50672

3

intermediate court renders judgment. Tex. R. App. P. 68.1, 68.2(a). We have

held that, when a petitioner elects not to file a PDR, his conviction becomes final

under AEDPA at the end of the 30-day period in which he could have filed the

petition—that is, “when the time for seeking further direct review expired.”

Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003). 

Here, after Mark’s motion to dismiss his appeal was granted, he did not

file a PDR. Therefore, applying our well-settled rule, Mark’s conviction became

“final” within the meaning of AEDPA 30 days after the Court of Appeals entered

judgment dismissing his appeal. That well-settled rule would not apply,

however, if Mark’s direct review process immediately came to an end when the

Court of Appeals entered judgment because he was somehow prohibited from

filing a PDR. In other words, Mark’s date of finality turns on whether Texas law

would have permitted him to file a PDR in the 30 days after the Court of Appeals

granted his motion to dismiss. Our review of the Texas Rules of Appellate

Procedure suggests that he could have done so.

The Rules provide that “[o]n petition by any party, the Court of Criminal

Appeals may review a court of appeals’ decision in a criminal case.” Tex. R. Civ.

P. 68.1. Under the Rules, dismissal of an appeal constitutes a judgment, which

starts the running of the 30 days for filing a PDR to the CCA. Beneath the

heading “Types of Judgment,” Rule 43.2 lists six possible dispositions by the

Court of Appeals, including “dismiss the appeal.” Tex. R. App. P. 43.2. If a party

wishes to seek review of such a judgment in the CCA, “[t]he petition must be

filed within 30 days after . . . the day the court of appeals’ judgment was

rendered.” Tex. R. App. P. 68.2(a).

Nevertheless, Respondent argues that a judgment signed upon voluntary

dismissal is not a “decision” within the meaning of Rule 68.1. A careful

examination of the Rules undercuts this assertion, however. A criminal
No. 09-50672

1 This rule stands in contrastto the rule governing civil actions in the Texas trial courts.

A civil plaintiff may voluntarily dismiss his case in the trial court—withoutthe need for a court

order—“[a]t any time before the plaintiff has introduced all of his evidence.” Tex. R. Civ. P.

162. Such a dismissal is effective immediately upon filing. See Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010) (“A nonsuit extinguishes a case or controversy from the

moment the motion is filed . . . ; the only requirement is the mere filing of the motion with the

clerk of court.” (internal quotation marks omitted)).

4

defendant cannot unilaterally dismiss his appeal once it has been filed.1 Rather,

he must make a motion, asking the court to dismiss it. See Tex. R. App. P. 42.2.

The court retains discretion in deciding such a motion: “[T]he appellate court

may dismiss the appeal upon the appellant’s motion.” Tex. R. App. P. 42.2(a)

(emphasis added). Therefore, an order granting that motion—even if a foregone

conclusion in the ordinary case—constitutes a “decision” by the court, from

which “any party” may petition for review by the CCA. Tex. R. App. P. 68.1.

Such an order would be unlikely to require a written opinion, but that fact does

not change the analysis. Indeed, the rules governing the content of a petition to

the CCA contemplate such a scenario. A petition must state “the date any

opinion of the court of appeals was handed down, or the date of any order of the

court of appeals disposing of the case without an opinion.” Tex. R. App. P.

68.4(e)(1) (emphasis added). Thus, a judgment dismissing an appeal, whether

or not accompanied by a written opinion, is a discretionary “decision” by the

Court of Appeals, allowing “any party” 30 days in which to petition for review by

the CCA. Tex. R. App. P. 68.1.

Respondent also suggests that the filing of a PDR following a voluntary

dismissal would be futile because the CCA would not likely grant discretionary

review. This argument misses the point. The relevant question is whether

Mark was entitled to file a petition, not whether a hypothetical petition would

have been successful. If he had the right to do so, then his “process of direct

review” had not “come to an end.” Jimenez, 129 S. Ct. at 685 (alterations and

internal quotation marks omitted). The merits of the petition itself are simply

not germane to the analysis of whether the “availability of direct appeal to the
No. 09-50672

2 The fact that the Court of Appeals issued its mandate on the same day it granted

Mark’s motion to dismiss the appeal is similarly irrelevant. Our precedent squarely forecloses

any argument that finality under AEDPA turns on the date the state court issues its mandate:

“[T]he issuance of the mandate by the state court of appeals is of no consequence for the

purposes of § 2244(d)(1)(A),” which asks only when the time for seeking further direct review

expired. Roberts, 319 F.3d at 694-95. 

3 We have held that “final” should be given a consistent meaning in habeas proceedings

whether under § 2255, which governs habeas petitions based on federal convictions, or § 2254,

which governs habeas petitions based on state convictions. See, e.g., United States v.

Plascencia, 537 F.3d 385, 388 (5th Cir. 2008). Specifically, convictions—whether state or

federal—become “final” under AEDPA when the process of direct review comes to an end. See

id. The distinction between the two becomes important because state and federal convictions

necessarily entail different processes of direct review and, of course, the timeline of the appeal

5

state courts . . . has been exhausted.”2Id. (internal quotation marks and

citations omitted).

Thus, Respondent has notidentified any provision of Texas law that would

have prevented Mark from filing a petition for discretionary review within the

30-day period after the court granted his motion to dismiss his appeal. Nothing

in the Texas Rules of Appellate Procedure states, or even suggests, that a

defendant who makes a motion to dismiss his appeal is foreclosed from filing a

PDR. Indeed, the language allowing review by the CCA “on petition by any

party” means that a petition may be filed even by a prevailing party—one who,

like Mark, received exactly the relief he sought in the appellate court. Tex. R.

App. P. 68.1 (emphasis added).

The dissent faults us for not following the general rule that a notice of

appeal voluntarily dismissed should be treated as if it were never filed at all.

See, e.g., Williams v. United States, 553 F.2d 420, 422 (5th Cir. 1977). The cases

relied upon by the dissent for this point, however, are direct appeals in federal

court. Notably absent are any Texas cases holding that a similar rule applies to

criminal appeals in that state’s courts. Determining when the time for seeking

further direct review in the state court expires—thus bringing the process of

state direct review to an end and rendering the conviction “final” under

AEDPA—by its own terms requires us to examine Texas law.3 The rules
No. 09-50672

process may vary between state court and federal court, and even from state to state. For this

reason, we have recognized that even though “final” should be given a uniform construction,

“some considerationof state law is inevitable when analyzing [AEDPA] limitations.” Foreman,

383 F.3d at 339.

6

governing the process of direct review in federal courts simply cannot tell us

when Mark’s process of direct review came to an end in Texas’s courts. In other

words, it may well be the case that when a federal criminal direct appeal is

voluntarily dismissed, further review is no longer possible and,thus,the federal

conviction immediately becomes final under AEDPA for purposes of any future

petition under 28 U.S.C. § 2255, although at least one court has taken a contrary

view. See Latham v. United States, 527 F.3d 651, 652-53 (7th Cir. 2008) (holding

that defendant’s federal conviction did not become final under AEDPA until the

time for seeking Supreme Court certiorari expired, despite the voluntary

dismissal of his appeal). Regardless, the same cannot be said about a state

criminal direct appeal in Texas court. As explained above, further direct review

of Mark’s appeal was still possible during the 30-day period for seeking review

in the CCA.

Although the dissent asserts that our reasoning conflicts with United

States v. Plascencia, 537 F.3d 385 (5th Cir. 2008),that case is inapposite because

it dealt with a federal conviction where the notice of appeal was filed untimely.

Here, Mark did not file an untimely PDR, but merely argues that his conviction

became final only once the time for filing a timely PDR expired. Moreover, to the

extent that Plascencia is relevant at all, it actually supports Mark’s argument.

In Plascencia, we held that where a timely notice of appeal of a federal

conviction is not filed, the conviction becomes final under AEDPA at the end of

the 10-day period for filing such a notice. Id. at 388. By failing to file a notice

of appeal during this period, “Plascencia allowed the [federal] direct review

process to expire, and his conviction became final on that date.” Id. By the same

logic, by failing to file a PDR, Mark allowed the state direct review process to
No. 09-50672

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expire, and his conviction became final at the conclusion of the 30-day period for

filing such a petition. Therefore, the well-worn rule we apply here is perfectly

consistent with Plascencia.

Likewise, applying this well-established rule does not implicate—much

less run afoul of—footnote 4 of Jimenez v. Quarterman. There, the Supreme

Court noted that it had “previously held that the possibility that a state court

may reopen direct review does not render convictions and sentences that are no

longer subjectto direct review nonfinal.” Jimenez, 129 S. Ct. at 686 n.4 (internal

quotation marks omitted). Mark’s process of direct review, however, did not

come to an end until the time for filing a PDR with the CCA expired—30 days

after the Texas Court of Appeals dismissed his appeal. Until that time, his

conviction was not final, so he has no need to invoke Jimenez’s “reopening of

direct review” rule in order to take advantage of this 30-day window.

In short, this case presents no reason for us to deviate from our precedent

holding that, where a defendant does not file a petition for discretionary review

with the Texas Court of Criminal Appeals, his conviction becomes final under

AEDPA when the time for doing so expired. See Roberts, 319 F.3d at 694-95.

Because it appears that Texas law would have permitted Mark to file a PDR

after the Court of Appeals granted his motion to dismiss his appeal, his “process

of direct review” did not “come to an end” until the end of the 30-day filing

period. Jimenez, 129 S. Ct. at 685 (alterations and internal quotation marks

omitted). Thus, under AEDPA, his state conviction did not become final until 30

days after the Court of Appeals dismissed his appeal.

This date of finality renders Mark’s habeas petition timely. Mark’s

conviction became final on March 25, 2005—30 days after the Court of Appeals

dismissed his appeal on February 22, 2005. Mark’s properly filed state habeas

petition—which was filed on February 21, 2006 and denied on April 9,

2006—tolled AEDPA’s one-year statute of limitations during the 48 days it was

pending. See 28 U.S.C. § 2244(d)(2). As such, Mark had until May 12, 2006 to
No. 09-50672

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file his federal habeas petition. Therefore, his federal petition, filed on May 4,

2006, was timely. Accordingly, we reverse the judgment of the district court

dismissing Mark’s petition as time-barred, and remand for further consideration

of his petition.

REVERSED and REMANDED.
No. 09-50672

1 Mark’s lawyer mailed the motion to withdraw the appeal and for voluntary dismissal

to the court of appeals (with a copy to the State’s attorney) on February 3, 2005. The motion

was signed by Mark individually, as well as by his counsel. The court of appeals received the

motion on February 8, 2005, and issued an opinion granting appellant’s motion to withdraw

the appeal and dismissing the appeal on February 22, 2005, and on the same day the mandate

of the court of appeals signed by its deputy clerk was issued allowing appellant to withdraw

his appeal and dismissing the appeal and certifying that decision for observance, the mandate

being mailed on the same day, February 22, 2005, by the clerk of the court of appeals to the

district court judge, the district court clerk,the attorney for appellant and the State’s attorney.

GARWOOD, Circuit Judge, dissenting.

I respectfully dissent. In my view, the direct appeal of Mark’s state

conviction terminated not later than February 22, 2005, when Mark’s appeal

was dismissed by the Texas Court of Appeals pursuant to Mark’s voluntary

motion to dismiss his appeal.1

I would apply the general rule long recognized in this and most other

circuits that when a party, after giving timely notice of appeal, has his appeal

dismissed on his own motion, he is thereby “placed in the same position as if [he]

had never filed a notice of appeal in the first place.” Williams v. United States,

553 F.2d 420, 422 (5th Cir. 1977). See also, e.g., Barrow v. Falk, 977 F.2d 1100,

1103 (7th Cir. 1992) (“A notice of appeal filed and dismissed voluntarily is gone,

no more effective in conferring jurisdiction on a court than a notice never filed,”

citing Williams); Futernick v. Sumpter, 207 F.3d 305, 312 (6th Cir. 2000)

(quoting with approval above quoted passage from Barrow). To the same effect

is United States v. Arevalo, 408 F.3d 1233, 1236 (9th Cir. 2005). See also United

States v. Outen, 286 F.3d 622, 631 & n.5 (2d Cir. 2002) (“A withdrawal of an

appeal . . . brings the appeal to an end,” quoting with approval the above quoted

language from Barrow). Relying on the foregoing authorities, the Third Circuit

recently held that a COA was not justified to challenge the district court’s

holding that the appellant’s section 2255 challenge was barred because filed

more than one year after “his direct appeal was voluntarily dismissed” with the

result that “further direct review is no longer possible.” United States v.
No. 09-50672

2 These are § 2255 cases. However, we apply the same principles to § 2255(f) cases as

to § 2241(d) cases. See United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008).

10

Sylvester, 258 Fed. App. 411, 2007 WL 4395652 (3d Cir., Dec. 14, 2007).2 See

also Brown v. Quarterman, 2007 WL 949800 (N.D. Tx. 2007), at n.1 (“Where a

habeas petitioner appeals his conviction but later dismisses the appeal, nearly

every federal courtto address the issue has held thatthe judgment becomes final

for limitations purposes on the date the appeal is dismissed”); United States v.

Martin, 2008 WL 421153 (N.D. Tx. 2008) (holding that the section 2255

petitioner’s “voluntary dismissal of her appeal is the date of finality of her

judgment for purposes of” the one year limitation period). And, in United States

v. Solis-Gonzalez, 254 F.3d 1080 (table), 201 WL 563745 (5th Cir. 2001, unpub.),

we affirmed the district court’s dismissal of the section 2255 petition as being

time barred, noting that the appellant had not properly briefed his arguments

that the petition was timely, but we went on to state: “Even if we were to

consider the timeliness of appellant’s petition, he would have difficulty

persuading us that, although he voluntarily dismissed his appeal, the one-year

period should be extended by the time limit for filing a petition for certiorari.”

Id. n1.

It is recognized that an exception to the above rule applies where a timely

motion to reinstate the appeal or set aside the dismissal thereof is filed on the

basis thatthe appellant’s motion to dismiss the appeal was involuntary, or based

on ineffective assistance of counsel , or made without consent of the appellant.

See Futernick at 312. An example of this is presented by Latham v. United

States, 527 F.3d 561 (7th Cir. 2008).

That character of exception should not apply here. First, at no time has

Mark ever sought to challenge the voluntariness or propriety of his motion to

dismiss the appeal (or the propriety of the dismissal itself) either in the state

court system or in his instant 2254 proceeding (or otherwise). Second, as the
No. 09-50672

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Court pointed out in Jimenez v. Quarterman, 129 S.Ct. 681, 686 n.4 (2009), it

continues to adhere to the rule “that the possibility that a state court may

reopen direct review ‘does not render convictions and sentences that are no

longer subject to direct review nonfinal’” (quoting Beard v. Banks, 124 S.Ct.

2504, 2510-11 (2004)). As stated in that footnote, Jimenez “merely hold[s] that,

where a state court has in fact reopened direct review,the conviction is rendered

nonfinal for purposes of § 2244(d)(1)(A) during the pendency of the reopened

appeal.” 

We have applied essentially the same principle in a variety of contexts.

In United States v. Plascencia, 537 F.3d 385 (5th Cir. 2008), we addressed a

situation in which notice of appeal from Plascencia’s challenged conviction was

due to be filed by January 12, 2004. Notice of appeal was filed on January 15,

2004, but within the time allowed by FED. R. APP. P. 4(b)(4), and we construed

the notice of appeal as a timely motion to extend the time for filing notice of

appeal where good cause or excusable neglect is shown for failure to timely file

the notice of appeal. The trial court ultimately held, after remand by this court,

that there was no good cause or excusable neglect, and we affirmed that holding

on June 9, 2004. Plascencia’s section 2255 motion was filed June 15, 2005. The

district court dismissed it, holding that it was filed more than a year after the

underlying conviction became final on January 12, 2004, when the time for filing

notice of appeal expired without any notice having been given. Plascencia

contended, however, that his conviction did not become final until September

2004, when the 90 day period for seeking certiorari from our June 9, 2004 order

affirming the trial court’s holding denying Plascencia‘s January 15, 2004

"motion” expired. We rejected his contention and held that the underlying

conviction became final on January 12, 2004, when the time for filing notice of

appeal expired without any such notice having been filed. Id. at 390. To the

same effect as Plascencia is Randle v. Crawford, 578 F.3d 1177, 1183-85 (9th

Cir. 2009), holding the challenged state conviction became final when the time
No. 09-50672

3

I also note the Supreme Court’s June 13, 2011 grant of certiorari (Gonzalez v. Thaler,

79 U.S.L.W. 3696 (U.S. 2011)) in Gonzalez v. Thaler, 623 F.3d 222 (5th Cir. 2010), presenting

the issue, inter alia, of whether for purposes of § 2244(d)(1)(A), the challenged state conviction

became final on the expiration of time for filing a petition for discretionary review with the

Texas Court of Criminal Appeals respecting the Texas Court of Appeals’s affirmance of the

challenged conviction or on the subsequent issuance of the mandate by the Texas Court of

Appeals. 

4 Absolutely no authority is cited concerning or involving any Court of Criminal Appeals

direct review of a Texas Court of Appeals order granting a written motion to dismiss a criminal

appeal signed by appellant and counsel and served on the state, or any other such motion. 

12

for filing notice of appeal from the convicting Nevada trial court expired without

such a notice being filed and not on the later date when the Nevada Supreme

Court dismissed the appeal as being untimely. Other similar cases are United

States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006); Moshier v. United

States, 402 F.3d 116, 118 (2d Cir. 2005); Kaspral v. United States, 166 F.3d 565,

577 (3d Cir. 1999).

The majority’s opinion here is in conflict with Plascencia and contrary to

the admonition in Jimenez’s footnote 4.3

The majority holds that Mark’s conviction did not become final until 30

days after the Court of Appeals granted his motion to withdraw his appeal on

February 22, 2005, and dismissed the appeal, because within that 30 days he

could have sought discretionary review in the Court of Criminal Appeals of that

decision of the Court of Appeals. However, there is nothing to indicate that any

such review would include anything whatever related to the underlying

conviction, and would not rather simply review whether the appeal should be

reinstated.4 As we said in Plascenscia, rejecting the contention that the there

challenged federal conviction did not become final untilthe expiration of 90 days

in which certiorari could be sought from our dismissal of the appeal as untimely

and rejecting the timely filed FED. R. APP.P. 4(b)(4) motion for extension of time

in which to file notice of appeal, “seeking certiorari review of the denial of such
No. 09-50672

5 To the extent that Latham may suggest otherwise, it is contrary to Plascencia.

13

a motion is not the same as seeking review of an adjudication of the merits of

Plascencia’s direct criminal appeal.” Plascencia at 389 n. 17. This, of course, is

what the Jimenez footnote 4 is saying, namely “the possibility that a state court

may reopen direct review ‘does not render convictions and sentences that are no

longer subject to direct review nonfinal.’” If direct review is reopened, then the

conviction is not final until it is otherwise concluded. The mere possibility that

direct review might be reopened, all that is present here or was present in

Plascencia, does not suffice.5