IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20512

Summary Calendar

WALTER CLIFFORD BECK,

Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:08-CV-2963

Before WIENER, PRADO and OWEN, Circuit Judges.

PER CURIAM:

*

Walter Clifford Beck, Texas prisoner # 1339487, appeals the dismissal of

his 28 U.S.C. § 2254 habeas corpus petition as time barred. Beck’s § 2254

petition challenged his aggravated robbery conviction, for which he was

sentenced 65 years of imprisonment.

Under § 2244(d)(1), a one-year period of limitation applies to § 2254

petitions. The limitation period does not begin to run until, at the earliest, “the

United States Court of Appeals

Fifth Circuit

F I L E D

October 15, 2010

Lyle W. Cayce

Clerk

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.

Case: 09-20512 Document: 00511264747 Page: 1 Date Filed: 10/15/2010
No. 09-20512

date on which the judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review.” § 2244(d)(1)(A). The

limitations period is tolled during the pendency of a properly filed state habeas

application. § 2244(d)(2). Direct review is generally concluded when the

Supreme Court either rejects a petition for certiorari, rules on its merits, or by

the expiration of the 90 days allowed for a petition of certiorari to the Supreme

Court following the entry of judgment by the state court of last resort. Roberts

v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). However, “[i]f the defendant stops

the appeal process before that point, the conviction becomes final when the time

for seeking further direct review in the state court expires.” Id.

In this case, the district court found that Beck terminated the appeal

process by missing an extended deadline for filing his petition for discretionary

review (PDR). We granted Beck a COA solely as to whether the district court

erred in finding that his PDR was untimely and dismissing his § 2254 petition

as time barred.

Beck argues that he did not miss the PDR deadline because Texas applies

a “mailbox rule” to PDRs. If Beck is correct, then he timely filed his § 2254

petition less than a year after the expiration of the 90 days allowed for a

certiorari petition. See Roberts, 319 F.3d at 694. The respondent agrees with

Beck and asserts that the TCCA accepted Beck’s PDR as timely under Texas

Rule of Appellate Procedure 9.2(b). In addition, the respondent supplemented

the record with relevant state court papers by permission of this court.

While a district court may raise the AEDPA time bar sua sponte in § 2254

proceedings, Day v. McDonough, 547 U.S. 198, 209 (2006), “information essential

to the [AEDPA] time calculation is often absent . . . until the State has filed,

along with its answer, copies of documents from the state-court proceedings.”

Id. at 207 n.6. In this case, because the respondent was not served prior to

dismissal of the action, the district court did not have the benefit of the pertinent

state court records which are now before this court and which would have aided

2

Case: 09-20512 Document: 00511264747 Page: 2 Date Filed: 10/15/2010
No. 09-20512

the district court’s decisional process. Furthermore, the respondent’s argument

in this court, that Beck’s § 2254 petition was timely, could be construed as a

deliberate waiver of the statute-of-limitations defense. See Day, 547 U.S. at 202

(“[W]e would count it an abuse of discretion to override a State’s deliberate

waiver of a limitations defense . . . .”).

In light of the respondent’s position on appeal regarding the time bar and

the information contained in the record as supplemented on appeal, the order of

the district court dismissing Beck’s § 2254 petition as untimely is VACATED,

and the case is REMANDED to the district court for further proceedings

consistent with this opinion.

3

Case: 09-20512 Document: 00511264747 Page: 3 Date Filed: 10/15/2010