# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 60098

**Reginald Desmond Wallace,**

Petitioner

— Appellant **,**

versus **State of Mississippi; Burl Cain, Commissioner, Mississippi Department of Corrections,**  Respondents

— Appellees

**.**

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:19

- CV

- 465

Before **Barksdale, Stewart,** a nd **Dennis,** Circuit Judges

**. Rhesa Hawkins Barksdale,**  Circuit Judge **:** This appeal pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq. , is by a Mississippi state prisoner seeking habeas relief under 28 U.S.C. § 2254

. Following a state trial court’s J udgment of C onviction based on guilty pleas and a much later Order of S entence (collectively the judgment) , petitioner, under state law, could not take a direct appeal to a state court. Nor did he seek direct re view by the Supreme Court of the United States . The failure to do so underlies the followi ng compelled and complex analysis. United States Court of Appeals Fifth Circuit 

### FILED August 8, 2022 Lyle W. Cayce Clerk Case: 20-60098 Document: 00516423193 Page: 1 Date Filed: 08/08/2022No. 20

- 60098

2 B ecause direct review by the Supreme Court was not pursued, primarily at issue is: For determining the date on which AEDPA’s one
- year limitations period (one

- year period) to seek federal habeas relief from a state

court judgment begins running, when does t he judgment resulting from a guilty

- plea conviction and sentence in Mississippi , for which there is no direct appeal to a Mississippi state court , become final

. Does it become final the day the judgment is filed , or 90 days later , when , pursuant to Suprem e Court Rule 13(1), the time has expired for seeking direct review from the Supreme Court of the United States by filing a petition for writ of certiorari (90

- day period) ? Reginald Desmond Wallace, a Mississippi inmate who pleaded guilty
to felony charges , contests his 28 U.S.C. § 2254 petition ’s being dismissed on the basis that it was filed 61 days late , using for finality of judgment the date his Order of Sentence was filed

. He contends the judgment did not become final until the 90

- day period expired because Mississippi law prohibited his seeking direct state

- court review of his guilty

- plea conviction s and sentence and, therefore, he instead could have pursued direct review by the Supreme Court of t he United States (finality issue)

. Therefore, had the 90

- day period been accorded Wallace by the district court, his petition would have been filed timely. Although our court granted Wallace a certificate of appealability ( COA ) on th is finality issue, W allace did not assert in district court, or in his pro se motion to our court for the COA, that the judgment became final only upon the 90

- day period ’s expiration

. To the contrary , Wallace’s counsel in district court conceded it did not. Accordingly, the threshold question for our considering this finality issue is whether Wallace preserved it.
Wallace also raises an alternative issue : whether our court should vacate the dismissal of his petition and remand to district court for him to Case: 20-60098 Document: 00516423193 Page: 2 Date Filed: 08/08/2022No. 20

- 60098

3 present an equitable

- tolling issue with conflict

- free counsel, in the light of Christeson v. Roper , 574 U.S. 373 (2015) (explaining, in context of AEDP A’s statute of limitations, conflict of interest generally arises when counsel asserts equitable tolling should apply because of counsel’s failure to meet deadline) . Wallace also moved to expand his COA to cover th is alternative issue , noting it was uncle ar whether the COA encompassed it.
F or Wallace’s finality issue , we hold : his judgment became final upon the 90

- day period’s expiration; and, therefore, his petition was filed timely

. Accordingly , it is not necessary to consider Wallace’s alternative equitable

tolling issue , including whether to expand the COA. **VACATED** and **REMANDED**

. I.
T his appeal centers on whether Wallace’s habeas petition was filed timely . Therefore, a n extremely detailed chronology of his lengthy state and federal p roceedings is required

. A.
Wallace and four codefendants w ere indicted in April 2012 in a Mississippi circuit court of armed robbery, kidnapping, and conspiracy to commit armed robbery, in violation of Miss issippi Code Ann otated §§ 97

- 1

- 1, 97

- 3

- 53, 97

- 3

- 79. Wallace retained counsel (state counsel). ( As provided in his later state

- court post

- conviction proceeding, h e allegedly insisted to
state counsel that : he did not plan the crime ; and he learned of the plan once the robbery had begun. ) On 12 September 2012, Wallace filed a motion to suppress a handgun that was seized during a search of his home. Asserting that “the State intend[ed] to convince the jury that th is handgun was the one used in the ” three charged offenses, h e challenged law enforcement’s assertion that the Case: 20-60098 Document: 00516423193 Page: 3 Date Filed: 08/08/2022No. 20

- 60098

4 handgun had been in plain view. Wallace contend ed in his later state

- court post

- conviction proceeding that the trial court declined to consider the motion unless he proceeded to trial. In any event, Wallac e on 24 September 2012 filed a petition to plead guilty to the three charged offenses . The court accepted his pleas that same day , and filed a Judgment of Conviction, in which sentencing was set for 5 November 2012

. Sentencing, however, was reset numerous times. During the sentencing phase, Wallace retained new counsel. Pursuant to an Order of Sentence filed o n 6 June 2013, he was sentenced to, inter alia , concurrent terms of: 30 years’ imprisonment for the armed robbery and kidnapping offenses; and five years ’ for the conspiracy offense.
Critical to this appeal, Mississippi law proscribed Wallace ’s filing a direct appeal because he pleaded guilty and was sentenced

. **Miss. Code Ann.**  § 9 9

- 35

- 101 ( “Any person convicted of an offense in a circuit c ourt may appeal to the [Mississippi] Supreme Court. However, where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed”

. ). Wallace did not seek a writ of certiorari from the Supreme Court of the United States (Court)

. T en months after being sentenced , Wallace on 10 April 2014 filed in circuit court a pro se motion for state post

- conviction relief, contending, inter alia : his guilty plea was involuntary ; and he received ineffective assistance from state counsel. ( The motion was docketed on 14 April , but because Mississippi’s prisoner

- mailbox rule applie d , it was effectively filed on 10 April

. ) In response, the State on 3 July 2014 presented, inter alia , an affidavit by Wallace’s state counsel , providing Wallace had: rejected an offer to plead guilty to the lesser charge of “simple robbery” (robbery plea

- offer); and lied Case: 20-60098 Document: 00516423193 Page: 4 Date Filed: 08/08/2022No. 20

- 60098

5 to state counsel about his involvement in the armed robbery. (The Mississippi Court o f Appeals later explained : “ I n Mississippi, there is no offense titled ‘simple’ robbery”. Wallace v. State , 264 So. 3d 1, 3 n.1 (Miss. Ct. App. 2018) (en banc)

. Accordingly, th at court “expressed [its] understanding to be that the characterization in [Wallace’s state

- counsel’s] affidavit refers to robbery . . . ”. Id. ) By a l etter to the circuit court filed 21 July 2014, Wallace stated he first learned of the robbery plea

- offer in state

- counsel’s affidavit. Wallace’s motion was dismissed on 6 August 2014 without a hearing. He appealed through new counsel ( who also later represent ed him in district court). The Mississippi Court of Appeals , inter alia : ruled there was no merit in Wallace’s claims presented in his pro se motion for post

conviction relie f; but, reversed and remanded for an evidentiary hearing on whether state counsel provided ineffective assistance by failing to inform Wallace of the robbery plea

- offer, as claime d in his letter to the circuit court. Wallace v. State , 184 So. 3d 993, 1001

– 03 (Miss. Ct. App. 2016). On remand, the circuit court on 3 October 2016 conducted a hearing , including admission of evidence, and subsequently denied post

- conviction relief. Wallace appealed, and the Mississippi Court of Appeals affirmed on 24 July 2018

. Wallace , 264 So. 3d at 2. The Mississippi Supreme Court on 14 February 2019 denied Wallace’s request for certiorari. Wall ace v. State , 263 So. 3d 664 (Miss. 2019). The mandate issued on 7 March 2019. I n short, Wallace’s state post

conviction proceedings took 1,792 days, approximately five years. B.
O n 3 July 2019, four months after the state mandate issued, Wallace, throug h counsel who had represent ed him on appeal from the dismissal of his Case: 20-60098 Document: 00516423193 Page: 5 Date Filed: 08/08/2022No. 20

- 60098

6 motion for state post

- conviction relief (hereinafter district

- court counsel), filed for 28 U.S.C. § 2254 relief , contending the Mississippi Court of Appeals’ affirming the denial of his ineffective

- assistance

- of

- counsel claim

— that state counsel failed to communicate to Wallace an offer to plead guilty

— was not supported by the facts presented at the circuit court hea ring. The State moved to dismiss the petition as untimely under AEDPA

. As discussed infra , AEDPA imposes the above

- referenced one
- year period to file a § 2254 petition for habeas relief from a state

- court judgment

. The one

year period begins running fr om the latest of, inter alia , the state

- court judgment of conviction ’s “bec [ oming] 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) (emphasis added)

. (As explained infra , t he expiration of time for seeking direct review includes the above

- referenced 90

- day period. ) And, t he one

- year period is tolled “during which a properly filed application for State post

- conviction or other collateral review with respect to the pertinent judgment or claim is pending”. 28 U.S.C. § 2244(d)(2) ; Lawrence v. Florida , 549 U.S. 327, 331 (2007). Without expressly claiming, as it does now, that Wallace was not entitled to the 90

- day period before his judgment became final, the State maintained t he judgment became final on 6 June 2013 ( when Order of S entenc e filed ). T he State accounted for the 1,792 days of statutory tolling under AEDPA’s tolling provision, between 10 April 2014 (the effective filing date of Wallace’s pro se motion for state post

- conviction relief under Mississippi’s prisoner

- mailbox rule) and 7 March 2019 ( when the Mississippi Court of Appeals’ mandate issued). See 28 U.S.C. § 2244(d)(2). The State, therefore, maintained that Wallace’s petition: had to have been filed by 3 May 2019 to have been timely; but instead was filed on 3 July , 61 days late r
. Case: 20-60098 Document: 00516423193 Page: 6 Date Filed: 08/08/2022No. 20

- 60098

7 In response, Wallace agreed his petition was untimely. Of importance to this appeal, district

- court counsel stated in Wallace’s response : although she inform ed Wallac e’s mother that Wallace was allowed one year and 90 days ( district

- court counsel presumably reference d the 90

- day period, although she cite d no authority regarding it ) to file a habeas petition, district

court counsel missed the filing deadline be cause she “rel[ied] on past experience and did not realize that the ninety days allowed for United States Supreme Court review applied only to cases on direct appeal and not to cases like Wallace’s that were on post

- conviction”. District

- court counsel requ ested the court to apply equitable tolling because Wallace should not be penalized for district

- court counsel’s negligence. The magistrate judge ’s (MJ) report and recommendation (R & R) stated : Wallace’s judgment became final on 6 June 2013 ( when Order of Sentence filed ) because Mississippi law prohibits a direct appeal from a guilty plea and sentence ; applied statutory tolling from 10 April 2014 (the date Wallace signed his pro se motion for post

- conviction relief) until 7 March 2019 (the date the mandate issued); and , taking statutory tolling into account , Wallace’s petition had to have been filed by 3 May 2019 to be timely, but was instead filed 426 non
- tolled days after his judgment became final

. A ccordingly, the MJ recommend ed that Wallace’s p etition be dismissed with prejudice. Notably, and presumably in reference to the 90

- day period, the MJ stated : “[Wallace’s district

- court ] counsel argues that she was not aware the 90 days allowed for United States Supreme Court review applied only to cases on direct appeal and not to cases on post

- conviction review”. In any event, t he R & R does not discuss wh y Wallace’s judgment became fi nal before the expiration of the 90

- day period , including why he was not entitled to that 90

- day period

. Case: 20-60098 Document: 00516423193 Page: 7 Date Filed: 08/08/2022No. 20

- 60098

8 The MJ also r ecommended that Wallace’s requested equitable tolling not be granted . This was based on recommending that Wallace’s district

court counsel’s negligence did not rise to the level required for such relief

. Wallace did not object to the R & R on the basis that the 90

- day period applied, resulting in the petition’s being filed timely. Instead, Wallace objected only to not being accorded equitable tolling. In doing so, d istrict

court counsel raised a similar , but different, issue in favor of applying such tolling: “Wallace should not be penalized because of his [district

- court]

couns el’s failure to realize that the [90] days for seeking certiorari review with the United States Supreme Court appl [ i ] es only on direct appeal and not to a petitioner who had pleaded guilty and, therefore [under Mississippi law] , has no direct appeal”

. Th e district court in its order : stated it had reviewed Wallace’s equitable

- tolling objection, but did not state it had reviewed the record; adopted the R & R; like the R & R, did not discuss why Wallace’s judgment became final before the expiration of the 90

- day period; and dismissed the action with prejudice , without addressing the merits of Wallace’s claims

. I n the order, it also denied sua sponte a COA without identifying the underlying issues , stating: “While petitioner has demonstrated that ‘jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right,’ he has not shown that ‘jurists of reason would find it debatable whether [thi s] court was correct in its procedural ruling’ ” (citing Slack v. McDaniel , 529 U.S. 473, 484 (2000) )

. For the referenced “procedural ruling”, there was again no discussion about whether it included Wallace’s not being entitled to the 90

- day period. Ap pealing to our court , Wallace filed a pro se motion for a COA on two issues. He first raised whether the district court erred in dismissing his habeas petition as time barred, noting district

- court counsel: “failed to file a Case: 20-60098 Document: 00516423193 Page: 8 Date Filed: 08/08/2022No. 20

- 60098

9 timely habeas corpus applicat ion or brief in support which resulted in dismissal for procedural bar”; delayed in filing because of “a financial situation where [counsel] was not being paid as fast as was planned”; and “actively mislead [him] by lies or deception” that the petition wou ld be filed timely

. (As stated supra , district

- court counsel did not file Wallace’s petition until four months after the state mandate issued.) A ttached as an exhibit to his motion was an email to his mother from district

- court counsel , in which she change d her explanation for why Wallace’s petition was filed late: “[Wallace]’s case was dismissed because I missed the deadline

– there was no extra 90 days for persons who pleaded guilty

. I had never filed a habeas [petition] from a guilty plea before and did not know that”. (Emphasis added.)
Wallace’s second issue in seeking a COA was whether his “attorneys” rendered ineffective assistance in violation of the Sixth Amendment ( incorporated in the Fourteenth Amendment ) ; his memorandum in support addre sses whether state counsel rendered ineffective assistance during the guilty

- plea stage in circuit court in 2012

. A judge on o ur court granted a COA for “whether the district court erred by dismissing [Wallace’s] petition as time barred”, ruling : “Wallace

. . . demonstrated that jurists of reason could find the district court’s determination that his § 2254 petition was untimely debatable” , stating in

su pport : “ A lthough Mississippi law does not allow for direct review of a guilty plea conviction, **Miss. Code Ann.** § 99

- 35

- 10, it is unclear whether a criminal defendant who is sentenced after pleading guilty [in Mississippi] is entitled to the 90

- day period to seek certiorari from the United States Supreme Court” . As required for when a COA is granted for a procedural ruling, as discussed infra , the judge also addressed Wallace’s constitutional claim: “ [R] easonable jurists would debate whether Wallace has s tated a valid claim of the denial of a constitutional right with respect to his claims that [state] counsel rendered ineffective assistance”. Case: 20-60098 Document: 00516423193 Page: 9 Date Filed: 08/08/2022No. 20

- 60098

10 In addition, o ur court appointed Wallace counsel. He then filed his opening brief and include d a second, altern ative issue : whether this court should remand so that he may present his equitable

- tolling challenge without conflicted counsel. He asserted : under Christeson , 574 U.S. at 373, it was a conflict of interest for district

- court counsel to have asserted equitable tolling applied because of her own actions; and district

- court counsel misled Wallace due to a payment dispute. Wallace added it was unclear whether his COA extended to th is alternative issue ; as a result, he moved to expand the COA to cover it. Our court ordered the motion carried with the case, and , inter alia , directed Wallace to file a supplemental brief regarding expanding the COA.
II. For the following reasons, Wa llace prevails on the 90

- day

- period issue. Therefore, as stated supra , we need not consider his equitable

- tolling issue, including whether to expand the COA. For purposes of determining whether Wallace filed timely his habeas petition, only one date is at issue: the day when his judgment became final and, therefore, when the one

- year period began running. Wallace contends : because he was entitled to seek direct review by the Supreme Court of his
state

- court judgment, the district court committed reversible plain error by concluding his judgment became final on the filing of his Order of Sentence , instead of when the subsequent 90

- day period expired (finality conclusion)

. The State counters , inter alia , that Wallace’s judgment became final on the filing of his Order of S entenc e in 2013 , asserting , pursuant to 28 U.S.C. § 1257(a), that he was not entitled to seek direct review by the Court : it would have lacked jurisdiction over Wallace’s claims because the circuit court was not the highest state court in “which a decision could [h ave been ] Case: 20-60098 Document: 00516423193 Page: 10 Date Filed: 08/08/2022No. 20

- 60098

11 had”; and , even if it was, the Court would have lacked jurisdiction to review federal claims raised for the first time in a petition for writ for certiorari

. A

. The threshold inquiry for our court is whether we may consider Wallace’s claim that his judgment became final upon the 90

- day period ’s expir ation because Wallace did not raise the claim either in district court after the State and the MJ used for finality the date the Order of Sentence was filed , or in his pro se motion in our court for a COA. As noted, o ur court, th r ough a single judge , granted Wallace the COA on the claim . But, “because a ruling by a motions judge in the initial stages of an appeal is not binding on the later merits panel, we have the responsibility to determine whether the [COA granting review of this claim ] is valid”. Black v. Davis , 902 F.3d 541, 544 (5th Cir. 2018) (reviewing whether our court’s grant of COA on issues not presented in district court valid).

1.
AEDPA in 1996 introduced both “simple logic” to the federal habeas landscape, Smith v. Titus , 141 S. Ct. 982, 987 (2021) (Sotomayor, J., dissenting from denial of cert. ) , and uniform rules for federal courts to apply , Day v. McDonough , 547 U.S. 198, 202 n.1 (2006) (referring to uniformity of AEDPA’s one
- year period)

. Namely, it implemented a host of greatly needed procedural requirements for petitioners seeking habeas relief. See Brown v. Davenport , 142 S. Ct. 1510, 1524 (2022) (noting “[i]n many ways, [AEDPA] represented a sea change in federal habeas law”). One su ch requirement, pursuant to 28 U.S.C. § 2253 (c) , is obtaining a COA

— an Case: 20-60098 Document: 00516423193 Page: 11 Date Filed: 08/08/2022No. 20

- 60098

12 extension of the former requirement for state prisoners to obtain a certificate of prob able cause. Black , 902 F.3d at 544 n.1

. The COA requirement is to “oblig[e] applicants to make a threshold showing before their cases are aired out on appeal”, and, therefore, “serves an important screening function and conserves the resources of appell ate courts”. Medellin v. Dretke , 544 U.S. 660, 678 (2005) (O’Connor, J., dissenting); United States v. Castro , 30 F.4th 240, 244 (5th Cir. 2022) (“In short, the COA requirement serves a gatekeeping function.”). This goes hand in hand with Congress’ intent in passing AEDPA: “ to further the principles of comity, finality, and federalism ”, Williams v. Taylor , 529 U.S. 420, 436 (2000); and “to curb the abuse of the statutory writ of habeas corpus” , Graham v. Johnson , 168 F.3d 762 , 780 (5th Cir. 1999) (citation omitted). Obtaining a COA from either the district court or our court is a jurisdictional prerequisite to our court’s considering an appeal in habeas. Gonzalez v. Thaler , 565 U.S. 134, 140 (2012) (quoting 28 U.S.C. § 2253)

. Our court generally lacks jurisdiction to issue a COA for a claim that was not raised in district court. Black , 902 F.3d at 54 4

– 47. Moreover, the district court must first deny a COA before petitioner may seek one from our court. E.g. , Whitehead v. J ohnson , 157 F.3d 384, 388 (5th Cir. 1998) ; Black , 902 F.3d at 543

. In that regard , as was done in this instance, i t is “perfectly lawful” for a district court sua sponte to deny a COA before petitioner seeks one in that court , as § 2253(c) does not require petitioner to make such request , stating only “ that an appeal may not be taken without a [ COA’s ] having been issued ”

. Alexander v. Johnson , 211 F.3d 895, 898 (5th Cir. 2000) (citing 28 U.S.C. § 2253).
As reflected supra , t o obtain a COA , petitione r must make “a substantial showing of the denial of a constitutional right”. 28 U.S.C. Case: 20-60098 Document: 00516423193 Page: 12 Date Filed: 08/08/2022No. 20

- 60098

13 § 2253(c)(2); Slack , 529 U.S. at 483

– 84. This requires showing that “reasonable jurists would find the district court’s assessment of the constitutional claims debatabl e or wrong”. Slack , 529 U.S. at 484. The inquiry is “limited to a threshold examination that ‘requires an overview of the claims in the habeas petition and a general assessment of their merits’”. Smith v. Dretke , 422 F.3d 269, 273 (5th Cir. 2005) (quoting Miller

- El v. Cockrell , 537 U.S. 322, 33 6 (2003)). And, as was also done in this instance , if the district court in ruling on issuance of a COA d enies relief on procedural grounds , an additional element is added : petitioner must demonstrate not only that “jurists of reason would find it debat able whether the [§ 2254] petition states a valid claim of the denial of a constitutional right” , but also that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling”. Slack , 529 U.S. at 484

– 85.
Our court has made limited exceptions to the understandable requirement that petitioner must raise a claim in district court before he can receive a COA on that claim from our court. An example is provided by Callicut v. Quarterman , 246 F. App’x 247 (5th Cir. 2007), which is factually similar to this case . The district court dismissed Callicut’s § 2254 petition as time barred after Callicut had submitted a document to the court reflecting that his petition had been filed timely. Id. at 248. At issue was whether our court lacked jurisdiction to consider his appeal because “[he] did not specifically argue in his COA motion to the district court that [its] finding concerning the date that his state habeas application was filed was incorrect”. Id

. Our court held it had jurisdiction “because the district court implicitly considered the issue when it denied Callicut’s COA motion”. Id. (citing Whitehead , 157 F.3d at 387

– 88). The decision in Callicut finds support in Case: 20-60098 Document: 00516423193 Page: 13 Date Filed: 08/08/2022No. 20

- 60098

14 “the existence of a COA [being] a ‘ ju risdictional prerequisite ’ to an appeal” , but “the content of the COA required by § 2253(c) [being] ‘ a mandatory but nonjurisdictional rule ’ ”. United States v. Smith , 945 F.3d 860, 863 (5th Cir. 2019) (emphasis in original) (quoting Miller

- El , 537 U.S. at 3 3 6, and Gonzalez , 565 U.S. at 154). Another example is in Reece v. Johnson , 208 F.3d 1006 ( T able ) , 2000 WL 177900 (5th Cir. 18 Jan. 2000) . Reece, challenging the denial of his § 2254 petition as time barred by AEDPA’s one

- year period , moved pro se for our court to issue a COA. Id. at *1 . Our court granted the COA, noting the district court misapplied the mailbox rule in its timeliness calculation , in the light of a decision issu ed after the district court’s ruling

. Id

. Reece’s COA motion to our court , however, did not raise that error but instead asserted “ s tate action impeded him from timely filing his § 2254 [ petition ] ”. Id. Our court reasoned that, because Reece’s challen ge was based on the calculation of AEDPA’s limitations period and his state habeas application’s filing date, his pro se COA motion “should be liberally construed as alleging the identified errors”. I d . (emphasis added).
Consistent with the district cou rt’s sua sponte denial of a COA when Wallace had counsel, with our required liberal review of Wallace’s pro se motion for a COA in our court, e.g. , id. ; United States v. Comeaux , 811 F. App’x 887, 887

– 88 ( 5th Cir. 2020) , and the analyses in Callicut and Reece , our court has jurisdiction to consider Wallace’s claim that his judgment became final upon the 90

- day period ’s expir ation

. In that regard, t he 90

- day period was referenced in district court at least three times. First, i n response to the State’s motion to dismiss, Wallace’s district

court counsel explained that she relied on her “past experience and did not realize that the ninety days allowed for United States Supreme Court review Case: 20-60098 Document: 00516423193 Page: 14 Date Filed: 08/08/2022No. 20

- 60098

15 applied only to cases on direct appeal and not to cas es like Wallace’s that were on post

- conviction”. (Emphasis added.) Second, the R & R notes “[Wallace’s district

- court ] counsel argues that she was not aware the 90 days allowed for United States Supreme Court review applied only to cases on direct appeal and not to cases on post

- conviction review”. (Emphasis added.) And, t hird , Wallace’s objection to the R & R ’s recommending denial of equitable tolling include s district

- court counsel’s different explanation for why she missed the filing deadline : “Wallace should not be penalized because of [district

- court] counsel’s failure to realize that the ninety days for seeking certiorari review with the United States Supreme Court appl [

i ]

es only on direct appeal and not to a petitioner who had pleaded guilty and, therefore, has no direct appeal ”

. (Emphasis added.) (At long last, the issue at hand, for which our court subsequently granted a COA, was at least approached, though not stated precisely.) Although Wallace’s district

- court counsel s tated , for various reasons, she misunderstood how, and if, the 90

- day period applied to Wallace , the possibility of Wallace’s judgment becoming final upon the 90

- day period’s expiration was still brought to the district court’s attention. For example, the district court reviewed the objection to the R & R and adopted the R & R. As in Callicut , 246 F. App’x at 248 , it can be said the district court “implicitly considered” the issue when both dismissing Wallace’s petition as time barred and den y i ng sua sponte a COA on procedural grounds

. Moreover, Wallace generally challenged the district court’s finality conclusion in his pro se motion for a COA to our court , also noting that , due to a payment dispute, district

- court counsel “failed to file a timely h abeas corpus application or brief in support which result ed in dismissal for procedural bar”. Wallace ’s attach ment to his motion , the email from district

Case: 20-60098 Document: 00516423193 Page: 15 Date Filed: 08/08/2022No. 20

- 60098

16 court counsel to Wallace’s mother , included : “[Wallace]’s case was dismissed because I missed the dea dline

– there was no extra 90 days for persons who pleaded guilty. I had never filed a habeas [petition] from a guilty plea before and did not know that”. Accordingly, his pro se COA motion can be liberally construed to include a claim that his judgment did not become final until expiration of the 90

- day period

. Reece , 2000 WL 177900, at *1

. Although a merits panel can overturn a single

- judge ruling on a motion for a COA, consider ation should be afforded that judge ’s analysis . In this instance, it appears the motions judge deemed the 90

- day

- period issue sufficiently raised in district court and our court.

2.
Our holding we have jurisdiction through our court’s COA to consider wh en Wallace’s judgment became final prompts our determining

our standard of review. Arguably, because Wallace has a COA from our court for, inter alia , the procedural 90

- day

- period issue , review is de novo

. E.g. , Giesberg v. Cockrell , 288 F.3d 268 , 270 ( 5th Cir. 2002). On the other hand, b ecause Wallace did not object to the R & R’s recommending Wallace’s habeas petition was untim ely and did not contest expressly the district court’s finality conclusion , review is arguably only for plain error

. Starns v. Andrews , 524 F.3d 612, 617 (5th Cir. 2008) (in habeas proceeding, reviewing claim for plain error because party failed to raise it as objection to R & R).
As noted supra , in adopting the R & R, the district court did not state it had made an independent review of the record. Therefore, re garding the R & R, it has long been established that , when the district court has not made an independent review of the record, e.g. , Alexander v. Verizon Wireless Servs., L.L.C. , 875 F.3d 243, 248 (5th Cir. 2017) , failure to object to an issue in the R & R, when warned of the requirement to file timely objections, results in plain

- error review applying to that issue when raised in our court. Douglass Case: 20-60098 Document: 00516423193 Page: 16 Date Filed: 08/08/2022No. 20

- 60098

17 v. United Servs. Auto. Ass’n , 79 F.3d 1415, 1428

– 29 (5th C ir. 1996) (en banc) (holding “party’s failure to file written objections to the proposed findings, conclusions, and recommendation in a [R & R] . . . after being served with a copy shall bar that party, except upon grounds of plain error, from attacking

on appeal the unobjected

- to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object”) , superseded by statute on other grou nds , 28 U.S.C. § 636(b)(1) ; Alexander , 875 F.3d at 248 (“When a party who is warned of the requirement to file timely objections to a [R & R] fails to file any such objections, and the [MJ ’s ] factual findings and legal conclusions are accepted by the distr ict court, our review is for plain error”.). Wallace was so warned in the R & R. Of considerable interest, and as noted supra , Wallace’s appointed counsel states plain

- error , rather than the less restrictive de novo , review applies; but , no authority ne ed be cited for the well

- established rule that we, not the parties, decide which standard of review to employ

. Wallace prevails under either standard of review, as shown infra . Therefore, it is not necessary to decide which of the two standards of review applies. In the light of the failure s to present in district court the specific issue permitted by the COA granted Wallace by our court , we assume, without deciding, that rev iew for this civil proce eding is for plain error. Hernandez v. Thaler , 630 F.3d 420, 424 (5th Cir. 2011) (stating “[h]abeas proceedings are civil actions”); Starns , 524 F.3d at 617 ( as stated supra , reviewing claim in habeas proceeding for plain error ) ; A lliance for Good Gov ’ t v. Coalition for Better Gov ’t , 998 F.3d 661, 673 n.4 ( 5th Cir. 2021) (Dennis, J., dissenting) (“Decades ago, our Court . . . adopted the practice of reviewing unpreserved error in a civil case using the plain

- error standard of review ”. (citation omitted)); Douglass , 79 F.3d at 142 4 (“Although the Federal Rules of Civil Procedure do not contain a plain error rule, our court has applied the plain error standard of [Federal Rule of Case: 20-60098 Document: 00516423193 Page: 17 Date Filed: 08/08/2022No. 20

- 60098

18 Criminal Procedure] 52(b) in civil cases”

. )

. Such application of plain

- error review finds support in Federal Rule of Civil Procedure 51(d)(2), which permits “[a] court [to] consider a plain error in the [jury ] instructions” that was not properly preserved under the rule, “if the error affects substantial rights”. Reviewing pursuant to the plain

- error standard demonstrates fully why Wallace prevails on the finality issue. In addition, o ur assuming review is for plain error imposes the more restricted and difficult review upon Wallace, especially when , as noted, he would prevail under our less difficult de novo review for the issue of law at hand . Nevertheless, we assume plain

error , rather than de novo , review applies to highlight, enforce, and protect the importance, for numerous obvious reasons, of pro perly preserving an issue in district court. E.g. , United States v. Chavez

- Hernandez , 671 F.3d 494, 497 ( 5th Cir. 2012) (“The purpose of plain error review is to instill in litigators the importance of preparing adequately before appearing in the trial

co urt and, as necessary, clarifying issues to that court. Timely, adequate objections allow the trial court to rule in the first instance and, if necessary, correct itself without spawning an appeal. This standard usually shields the district court from re versal because of error that was unwittingly committed, because not brought to its attention. The standard also shields this court from ruling on issues that have been insufficiently vetted below. Plain error review implicitly acknowledges that, in many cases, an appeal represents the triumph of hindsight, as a party attempts to shore up objections ineffectively lodged in the trial court, or not lodged at all, by adducing after

- the

- fact support for its position.”); United States v. Delgado , 672 F.3d 320, 332 (5th Cir. 2012) (en banc) (“It is worth reiterating that the limitations imposed by the plain

- error test promote important judicial policies. With respect to unpreserved errors, these limitations serve to induce the timely raising of claims and object ions, which gives the district court the opportunity to Case: 20-60098 Document: 00516423193 Page: 18 Date Filed: 08/08/2022No. 20

- 60098

19 consider and resolve them”. (citation omitted)); United States v. Mares , 402 F.3d 511, 521 (5th Cir. 2005) (noting prejudice prong enforces policies underpinning Federal Rule of Criminal Procedure 52 ( b): “to encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error” (citation omitted)). S ee also United States v. Olano , 507 U.S. 725, 732 (1993) (“Although a rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with . . . the rules of fundamental justice, the authority created by Rule 52(b) is circumscribed”. (citation and alteration omitted)).
Under the plain

- error standard, Wallace must show for reversible plain error: (1) a forfeited error ; (2) that was plain (clear or obvious error, rather than one subject to reasonable dispute) ; and (3) that affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009) ; Quinn v. Guerrero , 863 F.3d 353, 358 (5th Cir. 2017) ( citing Unit ed States v. Escalante

- Reyes , 689 F.3d 415, 419 (5th Cir. 2012) (en banc) )

. And (4) , i f he makes that showing, we have the discretion to correct the reversible plain error, but generally should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Puckett , 556 U.S. at 135 (citation omitted) ; Williams v. Trader Pub l’g Co. , 218 F.3d 481, 488 (5th Cir. 2000).
B

. For the following reasons, the district court committed reversible plain error for the finality issue

. And, applying our discretion for the f ourth Case: 20-60098 Document: 00516423193 Page: 19 Date Filed: 08/08/2022No. 20

- 60098

20 and final step of plain

- error review, we hold the error requires vacating the judgment of dismissal and remanding for further proceedings.

1

. As noted supra , the first of the four steps in p l ain

- error review is whether the issue was forfeited, as opposed to being waived . It was not waived because Wallace did not “intentionally relinquish [] or abandon [] ” in district court his claim on appeal (as allowed by our court’s COA) that his judgment became final when the 90

- day period expired

. Rosales

- Mireles v. United States , 138 S. Ct. 1897, 1904 (2018). This is reflected by district

- court counsel’s shifting positions on the finality issue and claiming negligence in not filing the § 2254 petition timely

. Therefore, Wallace “forfeited the claim of error” by failing to raise the finality issue in district court

. Puckett , 556 U.S. at 138 (emphasis omitted); see also Douglass , 79 F.3d at 1420 (“Whereas forfeiture is the failure to make the t imely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” (quoting Olano , 507 U.S. at 733)).

2. For the next step, the district court’s concluding Wallace’s judgment became final on the date his Order of Sentence was filed is “clear or obvious ”

error because , as referenced supra and discussed infra , it is “ not subject to reasonable dispute”. Puckett , 556 U.S. at 135; United States v. Davis , 967 F.3d 441, 442 (5th Cir. 2020). As noted supra , i n addition to the COA requirement, AEDPA imposes the one
- year period for an individual in custody pursuant to a state

- court judgment to file a § 2254 petition for habeas relief

. 28 U.S.C. § 2244(d). The on e
- year period begins running from the latest of four events. Id

. As stated, Wallace’s challenge relies on the followin g from the four : “the date on which the [state] judgment became Case: 20-60098 Document: 00516423193 Page: 20 Date Filed: 08/08/2022No. 20

- 60098

21 final by the conclusion of direct review or the expiration of the time for seeking such review ”. Id. at § 2244(d)(1)(A) (emphas i s added). For determining such finality of a state

- court judgment, “the conclusion of direct review” and “the expiration of the time for seeking such review” obviously refer to “distinct categor[ies] of petitioners”. Gonzalez , 565 U.S. at 150 (emphasis added). The first category applies to those who pursued direct review from the Court. Id. In that instance, “the judgment becomes final at the conclusion of direct rev iew” when the Court “affirms a conviction on the merits or denies a petition for certiorari ”. Id. (emphasis added). The second category refers to petitioners , like Wallace, who d id not seek direct review. In th at instance, “the judgment becomes final at the ‘expiration of the time for seeking [direct] review’ . . . when the time for pursuing direct review in [ the ] Court, or in state court, expires”. Id. ; see also Roberts v. Cockrell , 319 F.3d 690, 694 (5th Cir. 2003)

. In other words, i f petitioner may pursue direct state

- court review, but does not, his conviction becomes final when the time for seeking such review expires. See Roberts , 319 F.3d at 693

– 94. This case , however, turns on when petitioner could seek direct review by the Cou rt. As noted and discussed infra , t he Court may review a final
state

- court judgment if, inter alia , it is “rendered by the highest court of a State in which a decision could be had ”. 28 U.S.C. § 1257(a) (emphasis added)

. In that instance, AEDPA’s finali ty provision accounting for “time for seeking such review” includes the 90

- day period for filing a petition for writ of certiorari. Lawrence , 549 U.S. at 333; Roberts , 319 F.3d at 694; **Sup. Ct. R.** 13(1). A t issue is whether Wallace was entitled to pursue direct review by the Court during the 90

- day period from the date of his judgment (6 June 2013)

. Case: 20-60098 Document: 00516423193 Page: 21 Date Filed: 08/08/2022No. 20

- 60098

22 a. As noted supra , t he State , pursuant to 28 U.S.C. § 1257(a) , primarily contends : in the district court’s finality conclusion, there was no error
. In other words, the State for its primary bases of support does not rely upon the less arduous element for it in plain

- error review: that there was no clear or obvious error. Section 1257(a) provides: Final ju dgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where . . . any . . . right . . . is specially set up or claimed under the Constitution or the treaties or statutes of . . . the United States. The State maintains that, for purposes of triggering the one

- year period, Wallace’s judgment became final on the date of his Order of Sentence being filed in 2013, not after the 90

- day period : direct review by th e Court was not permitted because the Mississippi trial (circuit) court was not “the [requisite] highest court of [Mississippi] in which a decision could [ be ] had” ; and, even if it was, the Court would have lacked jurisdiction to review any federal claims raised by Wallace in a petition for writ of certiorari because he did not raise such claims in state (circuit) court. i.
As for the State’s first ground , the “highest c ourt . . . in which a decision could be had” is the “state court of last resort”. Gonzalez , 56 5 U.S. at 154. In that regard, t he state

- court judgment must be : “ subject to no further review or correction in any other state tribunal” ; and “the final word of a final court”

. Mkt. St. Ry. v. R.R. Comm’n , 324 U.S. 548, 551 (1945)

. The “state court of last resort ” can , of course, be a court other than the highest i n the S tate. E.g. , Grovey v. Townsend , 295 U.S. 45 (1935) ( on writ Case: 20-60098 Document: 00516423193 Page: 22 Date Filed: 08/08/2022No. 20

- 60098

23 of certiorari to Texas justice court); Canizio v. New York , 327 U.S. 82, 84

– 85 (1946) (holding jurisdiction existed to consider appeal from New York county court on denial of writ of coram nobis because state law did not permit appeal to higher court); Bat es v. Sec’y Dep ’ t of Corr. , 964 F.3d 1326, 1329 (11th Cir. 2020) (concluding Florida intermediate appellate court was “court of last resort” because Supreme Court of Florida jurisdictionally barred from reviewing unelaborated per curiam opinion).
The Sta te contends : because Wallace could pursue state post

- conviction review , the trial (circuit) court was not the “state court of last resort”. Not

so. First, 28 U.S.C. § 2244(d) distinguishes between direct and collateral review: again, the one
- year perio d begins running at the expiration of time to seek direct review ; and “the time during which a properly filed application for State post

- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted t oward any period of limitation under this subsection [(d)] ”. 28 U.S.C. § 2244(d) (emphasis added); Wall v. Kholi , 562 U.S. 545, 547 (2011) (holding “the phrase ‘collateral review’ in § 2244(d)(2) means judicial review of a judgment in a proceeding that is not part of direct review” (emphasis added)). At issue here, in determining whether the 90

- day period applies , is whether the period for direct review, not collateral review , expired

. See Roberts , 319 F.3d at 694. Moreover, the State’s contention that the trial court was not the “state court of last resort” is inconsistent with its position that Wallace’s judgment became final when his Order of S entence was filed

. Along that line , the State concedes : under Miss issi ppi Code Ann otated § 99

- 35

- 101, Wallace’s judgment was final because he could not appeal his guilty plea and
sentence to a higher Mississippi court. As such, Wallace’s guilty

- plea conviction was “the [requisite] final word of a final [Mississippi] court”. Case: 20-60098 Document: 00516423193 Page: 23 Date Filed: 08/08/2022No. 20

- 60098

24 Mkt. St. Ry

. , 324 U.S. at 551. The command of Roberts , therefore, is clear: the 90

- day period for seeking a writ of certiorari from the Court was available to Wallace and was triggered when the judgment was filed after sentencing

. ii.
F or its second primary ground , the State relies on 28 U.S.C. § 1257(a) ’s requiring the claim for which review by the Court is requested to be “under the Constitution or the treaties o r statutes of the United States” (federal

- law claim ). The State asserts that, under § 1257(a), the Court could not review a federal

- law claim raised for the first time in a petition for writ of certiorari : the “Court has alm ost unfailingly refused to consider any federal

law challenge to a state

- court decision unless the federal claim was either addressed by or properly presented to the state court that rendered the decision [it has] been asked to review”, Howell v. Mississip pi , 543 U.S. 440, 443 (2005); and no federal

- law claims were presented to the circuit court , nor decide d by it

. The State, however, cites no decisions supporting its position that the 90

- day period would not apply because the Court would have lacked jurisdiction to review federal

- law claims raised by Wallace for the first time in seeking direct review of his guilty plea

. More to the point , § 2244(d)(1)(A) imposes no requirement that, for the 90

- day perio d to apply, the Court must have jurisdiction over a petition for writ of certiorari, if filed. And, as discussed supra , Wallace did raise a Fourth Amendment claim , applicable to the States through the Fourteenth Amendment, in circuit
court before he plead ed guilty . Moreover, he later contended in his state

court post

- conviction proceeding that the circuit court declined to consider the challenge unless he proceeded to trial. Who is to say that claim, as well as that ruling , could not have been raised as Fourteenth Amendment claim s in a petition for writ of certiorari? Case: 20-60098 Document: 00516423193 Page: 24 Date Filed: 08/08/2022No. 20

- 60098

25 In addition, in instances following a guilty plea and sentence in a Mississippi state court in which, as here, direct review is not requested from the Supreme Court, how would a federal dist rict or circuit court in a habeas proceeding determine whether , for purposes of the Supreme Court ’s hav ing jurisdiction vel non to consider a petition for writ of certiorari, a federal

- law claim had been raised adequately in the Mississippi state court, or would be otherwise sufficient to ensure jurisdiction for review by the Court? Such inquiry and conjuncture fly in the face of the certainty in procedures and rules AEDPA in part was enacted to achieve.
O ur court’s decisions analyzing when the 90

- day per iod applies support that we need not look to whether the Court would have jurisdiction over a petition for writ of certiorari , if filed

. For example, in Flanagan v. Johnson , our court : considered whether dismissal as time barred of a petition for habeas relief from a Texas state

- court judgment resulting from a jury conviction was proper ; and noted that, because petitioner (who pursued unsuccessfully direct state

- court review) did not seek a writ of certior ari from the Court, his conviction became final 90 days after the judgment following appeal was entered. 154 F.3d 196, 197 (5th Cir. 1998) (citing Casp a ri v. Bohlen , 510 U.S. 383 (1994) (discussing finality in the context of Teague nonretroactivity) )

. Ou r court did not address whether the Court would have had jurisdiction had a petition for writ of certiorari been filed

. Id

. b. Accordingly, the State’s two primary bases for the 90

- day period’s not being appli cable fail. But, in this instance, because plain

- error review applies, the underlying error must be more than simply an error, it must be “plain”: “clear” or “obvious”. Along that line , t he State contends : because our court has not addressed previously whet her, under Mississippi law, the judgment of defendant who plead ed guilty and was sentenced bec a me final upon the Case: 20-60098 Document: 00516423193 Page: 25 Date Filed: 08/08/2022No. 20

- 60098

26 90

- day period ’s expiration , the district court’s error was not clear or obvious. (The State belatedly raised th is issue in a Rule 28(j) letter after oral argument in our court

. The issue warrants consideration because the letter relies upon an opinion issued after oral argument and the issue is a necessary inquiry for plain

- error review.) In that regard, o ur court will “ ordinarily [] not find plain error when [it has] not previously addresse d an issue. Even where the argument requires only extending authoritative precedent, the failure of the district court cannot be plain error”. United States v. Evans , 587 F.3d 667, 671 (5th Ci r. 2009) (emphasis added) (citation omitted); see also United States v. Ellis , 564 F.3d 370, 377

– 78 (5th Cir. 2009) ( explaining why our court did not decide whether there was “any error at all” because , inter alia , lack of clarity in the law rendered any s uch error less than “plain”).
Our court has held an error “clear or obvious” , however, when the result was plainly dictated by relevant laws and decisions. E.g. , United States v. Insaulgarat , 378 F.3d 456, 471 (5th Cir. 2004) (holding court plainly erre d because claim at issue “clearly and plainly follow[ed]” from direct language of, inter alia , Sentencing Guideline, statute, and decisions construing Guideline ); see also United States v. Spruill , 292 F.3d 207, 215 & n.10 (5th Cir. 2002) (“The fact that t he particular factual and legal scenario here presented does not appear to have been addressed in any other reported opinion does not preclude the asserted error in this respect from being sufficiently clear or plain to authorize vacation of the conviction on direct appeal.”). Wallace’s judgment becoming final upon the 90

- day period ’s expir ation clearly flows from § 2244(d)(1) and our court’s prior decisions applying that statute, such as in Roberts , 319 F.3d at 694. Unlike in Evans , such a conclusion does not expand § 2244(d)(1)’s application. 587 F.3d at 667. To hold otherwise is to turn a blind eye to both a needed bright

- line rule Case: 20-60098 Document: 00516423193 Page: 26 Date Filed: 08/08/2022No. 20

- 60098

27 compelled by the plain wording of § 2244(d)(1) and one of the underlying goals of AEDPA: to provide unifor m rules to ensure certainty in procedural requirements for federal habeas relief. (Though not discussed by the parties, it appears, by our independent research, that only one other S tate statutorily imposes such broad restrictions as Mississippi. See **Ari z. Rev. Stat.**  § 13

- 4033(B) (“In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.”).)

3. For the next step in plain

- error review , the error obvi ously affected Wallace’s substantial rights because it precluded his pursuing federal habeas relief on the merits

. See Fisher v. Johnson , 174 F.3d 710, 713 (5th Cir. 1999) (noting, in the context of equitable tolling, dismissal of first habeas petition “is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to a n important interest in human liberty”); Price v. City of San Antonio , 431 F.3d 890, 894 (5th Cir. 2005) (holding appellant’s substantial rights were affected by “dismissal with prejudice

. . . because it resulted in the permanent loss of

. . . claims”),

a brogated on other grounds by Bradley v. Sheriff’s Dep’t St. Landry Par. , 958 F.3d 387, 391

– 92 (5th Cir. 2020).

4

. Having held the first three steps of plain

- error review are satisfied , we hold the district court’s error requires reversal because it “serio usly affect[s] the fairness, integrity, or public reputation of judicial proceedings”. Puckett , 556 U.S. at 135 (citation omitted)

. At hand is whether Wallace, a state prisoner , may pursue habeas relief at all. F oreclosing judicial review of a habeas pe tition on the ground it was filed untimely , when it was not, undermines “the public legitimacy of our justice system[, which] relies on Case: 20-60098 Document: 00516423193 Page: 27 Date Filed: 08/08/2022No. 20

- 60098

28 procedures that are neutral, accurate, consistent, trustworthy, and fair”. Rosales

- Mireles , 138 S. Ct. at 190 8 (citation omitted)

. And, b ecause the district court’s finality conclusion resulted from error in applying AEDPA’s limitations period, it may no w be easily corrected. See id.
III. For the foregoing reasons, the dismissal of Wallace’s habeas petition is **VACATED** ; and this matter is **REMANDED** to district court for further proceedings consistent with this opinion . (Accordingly, it is not necessary to consider Wallace’s motion to expand the COA.) Case: 20-60098 Document: 00516423193 Page: 28 Date Filed: 08/08/2022