IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10871

RAFAEL ARRIAZA GONZALEZ,

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 Northern District of Texas

Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Petitioner-appellant Rafael Gonzalez appeals the district court’s dismissal

of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The

district court held that Gonzalez’s petition was time-barred under 28 U.S.C.

§ 2244(d)(1) because he failed to file his petition within one year of the expiration

of his time to appeal his intermediate state appellate court judgment to the

Texas Court of Criminal Appeals. We affirm.

FACTS AND PROCEEDINGS

On July 14, 2005, Gonzalez was convicted of murder and sentenced to

thirty years in prison. Gonzalez appealed his conviction to the Texas Court of

United States Court of Appeals

Fifth Circuit

F I L E D

October 6, 2010

Lyle W. Cayce

Clerk

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Appeals, which affirmed his conviction on July 12, 2006. See Gonzales v. State,

No. 05-05-01140-CR, 2006 WL 1900888 (Tex. App. July 12, 2006). Gonzalez did

not file a petition for discretionary review to the Texas Court of Criminal

Appeals within the thirty days allowed by the Texas Appellate Rules. See TEX.

R. APP. P. 68.2(a). Gonzalez’s period for discretionary review expired on August

11, 2006. On September 26, 2006, the mandate was issued in his case.

On February 8, 2007, Gonzalez filed for a writ of habeas corpus in the

Texas Court of Criminal Appeals, which dismissed his application on April 11,

2007, for failure to comply with the Texas Appellate Rules. On July 19, 2007,

Gonzalez filed for a second state writ of habeas corpus, which was denied on

November 21, 2007.

On January 24, 2008, Gonzalez filed a petition for a writ of habeas corpus

in the district court under 28 U.S.C. § 2254. A magistrate judge recommended

that the district court dismiss Gonzalez’s petition as time-barred because he had

failed to comply with the one-year statute of limitations under the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). Citing to this court’s decision

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

calculated Gonzalez’s one-year period beginning from the date Gonzalez could

no longer petition for discretionary review to the Texas Court of Criminal

Appeals, August 11, 2006. Gonzalez objected to the magistrate judge’s report

and recommendation, arguing that the magistrate judge should have calculated

the one-year period from that the date the mandate was issued instead of the

date his right to petition for discretionary review expired. The district court

overruled Gonzalez’s objections, adopted the magistrate’s recommendations, and

dismissed Gonzalez’s petition as time-barred.

Gonzalez appealed, and we granted a certificate of appealability (COA) on

the question of “whether Roberts has been overruled by Lawrence [v. Florida,

549 U.S. 327, 331-35 (2007)] and, if so, whether [Gonzalez’s] habeas application

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was timely filed.”

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STANDARD OF REVIEW AND APPLICABLE LAW

We review the denial of a federal habeas petition on procedural grounds

de novo. Roberts, 319 F.3d at 693.

DISCUSSION

Under the AEDPA, Gonzalez had one year to timely file his petition,

beginning on “the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review.” 28 U.S.C.

§ 2244(d)(1)(A) (2010). Gonzalez’s appeal centers on when his conviction became

“final” and triggered his limitations period.

In Roberts, we held that the issuance of a mandate by a state court is

irrelevant to determining when a judgment becomes “final” for the purposes of

§ 2244(d)(1)(A). Roberts, 319 F.3d at 694-95. Instead, because a conviction

becomes final “by the conclusion of direct review or the expiration of the time for

seeking such review,” the one-year limitations period for a petitioner that does

not appeal to the state court of last resort begins “when the time for seeking

further direct review in the state court expires.” Id. at 694 (quoting

§ 2244(d)(1)(A)).

Gonzalez’s “time for seeking further direct review in the state court”

expired on August 11, 2006, the last date under the Texas Appellate Rules that

he could petition for discretionary review of his judgment. Id.; see TEX. R. APP.

P.68.2(a). Under Roberts, Gonzalez’s AEDPA limitations period therefore began

on August 12, 2006, the day after his conviction become final. See Flanagan v.

Gonzalez also argues that: (1) his right to a speedy trial was violated; (2) his trial 1

counsel was ineffective; (3) the trial court admitted tainted evidence and faulty witness

statements into evidence; and (4) the state violated his due process rights by refusing to give

him copies of the clerk’s and reporter’s records. Because COAs were not granted on these

issues, we lack jurisdiction to consider these claims. Carty v. Thaler, 583 F.3d 244, 266 (5th

Cir. 2009); 28 U.S.C. § 2253(c).

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Johnson, 154 F.3d 196, 202 (5th Cir. 1998) (applying FED. R. CIV. P. 6(a) to

AEDPA calculation).

Three hundred forty-two days of the limitations period elapsed before

Gonzalez filed his second state habeas petition. Because “[t]he time during

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which a properly filed application for State post-conviction . . . review with

respect to the pertinent judgment . . . is pending shall not be counted toward any

period of limitation,” the limitations period was tolled for the 125 days between

July 20 and November 21, 2007. 28 U.S.C. § 2244(d)(2). The one-year

limitations period resumed running on November 22, 2007, and under Roberts,

expired on December 17, 2007. Gonzalez filed his federal habeas petition on

January 24, 2008. Applying the undisputed facts to the current circuit rule,

Gonzalez’s federal habeas petition was time-barred by the AEDPA’s one-year

limitations period.

Gonzalez argues the Supreme Court overruled Roberts in Lawrence and

thus his conviction became “final” for the purposes of § 2244(d)(1)(A) when the

state appellate court issued its mandate on September 26, 2006. Excluding the

same 125 days for the properly filed state habeas petition, Gonzalez’s one-year

limitations period would therefore extend to January 30, 2008, and his federal

habeas petition would not be time-barred by the AEDPA.

In Lawrence, the issue before the Court was “whether the [AEDPA]

limitations period was . . . tolled [under § 2244(d)(2)] during the pendency of

Lawrence’s petition for certiorari to [the Supreme] Court seeking review of the

denial of state postconviction relief.” 549 U.S. at 331. The Court held that the

statute of limitations was only tolled while the state courts reviewed the

Gonzalez’s first state habeas petition did not toll the limitations period because it was

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not “properly filed” as required by the Texas Appellate Rules and, by extension, § 2244(d)(2). 

See Artuz v. Bennet, 531 U.S. 4, 8 (2000) (holding that an application is “properly filed” under

when “its delivery and acceptance are in compliance with the applicable laws and rules

governing filings”).

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application because, “[a]fter the State’s highest court has issued its mandate or

denied review, no other state avenues for relief remain open,” and the petition

was therefore not “State post-conviction or other collateral review” required by

§ 2244(d)(2). Id. at 332 (emphasis in original).

We hold that the Supreme Court did not overrule Roberts in Lawrence.

First, and most importantly, the Court was interpreting the AEDPA’s tolling

provision, § 2244(d)(2), not its triggering provision, § 2244(d)(1), in Lawrence.

Id. at 332. Furthermore, although the Court references the “State court’s

mandate” in Lawrence, the references were to the State court’s mandate denying

the prisoner’s state post-conviction habeas petition, not the mandate affirming

his original conviction. Id. at 330-32. It is unlikely that the Court intended to

implicitly hold that a state conviction is “final” under § 2244(d)(1) when the

mandate issues while discussing the finality of a state habeas claim in the

context of a different statutory component of the AEDPA.

Additionally, we believe that Lawrence did not overrule Roberts because

the resulting interpretation would be contrary to the plain language of the

statute. Under the AEDPA, the limitations period can begin on “the date on

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

expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). For

petitioners such as Gonzalez who do not exhaust their state court rights, the

“expiration of the time for seeking [direct] review” is clearly when the petitioner

can no longer timely file for further state court review, not when the mandate

issues. The Supreme Court recently reached a similar conclusion in Jimenez v.

Quarterman, concluding that state judgments were “final” under § 2244(d)(1)

when the time for filing a petition for certiorari expires because that

“comport[ed] with the most natural reading of the statutory text.” 129 S. Ct. 681,

685 (2009). Notably, the Court did not mention the state court’s issuance of the

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mandate after the time for filing a petition for certiorari expires.

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The Eighth Circuit has recently relied on Lawrence to support its

conclusion that a conviction becomes final for the purposes of § 2244(d)(1)(A)

when the state court issues its mandate. Riddle v. Kemna, 523 F.3d 850, 855-56

(8th Cir. 2008) (en banc). Riddle is unpersuasive for two reasons. First, the

Eighth Circuit cited Lawrence to support Payne v. Kemna, a prior Eighth Circuit

decision where it held that the state court mandate triggers the AEDPA statute

of limitations. See Payne v. Kemna, 441 F.3d 570, 572 (8th Cir. 2006). Payne

based its holding primarily on Missouri state court decisions holding that an

appeal is not final until the mandate has issued. Id. (citing Williams v. Blumer,

763 S.W.2d 242, 245 (Mo. Ct. App. 1988)). But the Supreme Court has held that

the phrase “‘by the conclusion of direct review or the expiration of the time for

seeking such review’ make[s] it clear that finality for the purpose of

§ 2244(d)(1)(A) is to be determined by reference to a uniform federal rule.” Clay

v. United States, 537 U.S. 522, 531 (2003). The Eighth Circuit’s holdings in

Payne and Kemna violate this principle by relying on state court definitions to

determine finality under § 2244(d)(1). Second, the court in Riddle failed to

analyze the Court’s holding in Lawrence, limiting its discussion to a

parenthetical statement that the “Court refer[red] five times to the issuance of

the mandate by state court as the ‘final judgment.’” Riddle, 523 F.3d at 856.

“[F]or a panel of this court to overrule a prior decision, we have required

a Supreme Court decision that . . . establishes a rule of law inconsistent with our

own.” Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1103 (5th Cir. 1997)

(overruled in part on other grounds by Okpalobi v. Foster, 224 F.3d 405 (5th Cir.

Gonzalez’s theory would also result in different definitions of when a conviction was

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final depending on what point a petitioner ends direct review. Under his theory, the issuance

of the mandate would begin his one-year limitations period if he failed to appeal to the Texas

Court of Appeals or the Texas Court of Criminal Appeals. But, if he failed to appeal to the

United States Supreme Court, the end of the period for filing a petition for certiorari would

begin his one-year limitations period. Jimenez, 129 S. Ct. at 685.

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2001)). Because the Court’s decision in Lawrence is not inconsistent with our

prior decision in Roberts, we hold that Roberts remains good law in this circuit.

Under the AEDPA, a state conviction for a petitioner who does not appeal to the

state court of last resort becomes final “when the time for seeking further direct

review in the state court expires,” not when the mandate issues in his case.

Roberts, 319 F.3d at 695. Gonzalez’s habeas petition is barred by the AEDPA’s

one-year statute of limitations.

CONCLUSION

For the above reasons, the judgment of the district court is AFFIRMED.

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