Rojas v. Cockrell

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-11204 _______________

LEONARD URESTI ROJAS,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________

Appeal from the United States District Court for the Northern District of Texas 3:00-CV-716 _________________________ June 7, 2002

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges. Leonard Rojas filed his first federal petition for writ of habeas corpus, which the district PER CURIAM:* court denied as untimely, rejecting Rojas’s

• • * Pursuant to 5TH CIR. R. 47.5, the court has (...continued) determined that this opinion should not be pub- lished and is not precedent except under the limited (continued...) circumstances set forth in 5TH CIR. R. 47.5.4.

argument that the time limit of the Anti-Ter- (Sept. 6, 2001). The court found that rorism and Effective Death Penalty Act of AEDPA’s one-year statute of limitations, cod- 1996 (“AEDPA”), codified at 28 U.S.C. ified at 28 U.S.C. § 2244(d), barred Rojas’s § 2244(d), violates the Suspension Clause, claim. U.S. CONST. art. I, § 9, cl. 2. The district court also refused to grant a certificate of II. appealability (“COA”). Agreeing with the Where the district court denies relief on district court, we decline to issue a COA. procedural grounds, the petitioner must satisfy two elements before we will grant a COA. He I. must show that “jurists of reason would find it Rojas shot and killed his girlfriend and debatable whether the petitioner states a valid brother in a jealous rage after a night of drink- claim of the denial of a constitutional right” ing and drug use. A jury convicted Rojas of and “would find it debatable whether the capital murder and sentenced him to death. district court was correct in its procedural On September 23, 1998, the Texas Court of ruling.”1 Criminal Appeals affirmed the conviction and sentence in Rojas v. State, 986 S.W.2d 241 Rojas admits that he filed his first habeas (Tex. Crim. App. 1998). On November 4, petition over a year after his final conviction, 1998, that court denied rehearing. Because making the petition untimely.2 He argues only Rojas did not file a petition for writ of certio- that § 2244(d) violates the Suspension rari in the United States Supreme Court, his Clause.3 We twice have held that AEDPA’s conviction became final ninety days following the denial of rehearing, on February 2, 1999. 1 Slack v. McDaniel, 529 U.S. 473, 484 (2000); Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir.) On June 22, 1998, while his direct appeal (addressing questions about the juvenile death pen- was pending, Rojas filed an application for alty and other due process concerns under the two- writ of habeas corpus in state court. On De- part test), cert. denied, 533 U.S. 969 (2001); Dwo- cember 9, 1998, the Court of Criminal Appeals thitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000) rejected that writ application in Ex Parte (reviewing admission of DNA evidence), cert. Rojas, No. 39,062-01 (Tex. Crim. App. Dec. denied, 532 U.S. 915 (2001). Because we deny 9, 1999) (unpublished); Ex Parte Rojas, 981 relief on Rojas’s procedural issue, we do not reach S.W.2d 690 (Tex. Crim. App. 1998) (Baird, J., the additional prong of the Slack test, i.e., whether concurring). he stated a cognizable claim of the denial of a constitutional right. See Beazley. On April 5, 2000, Rojas applied to the fed- 2 eral district court for appointment of counsel 28 U.S.C. § 2244(d)(1) (“A 1-year period of to file a federal habeas petition under 28 limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant U.S.C. § 2254. The court appointed counsel, to the judgment of a State court.”). who, on March 23, 2001, filed a petition. On September 6, 2001, the court denied the peti- 3 The Suspension Clause of the federal Consti- tion with prejudice and refused to issue a tution provides that “[t]he privilege of the writ of COA. Rojas v. Cockrell, No 3:00-CV- habeas corpus shall not be suspended, unless when 0716-D, 2001 U.S. Dist. LEXIS 13988 in Cases of Rebellion or Invasion the public Safety (continued...)

statute of limitations only alters the procedure Following Felker v. Turpin, 518 U.S. 651, for bringing a habeas petition and does not 663-64 (1996), we have assumed arguendo unconstitutionally suspend the writ. Molo v. that the Suspension Clause refers to the mod- Johnson, 207 F.3d 773, 775 (5th Cir. 2000); ern, twentieth-century writ rather than to the Turner v. Johnson, 177 F.3d 390, 392 (5th writ as it may have existed in 1789. Turner, Cir. 1999). Every other federal court of ap- 177 F.3d at 392. We have found that the limi- peals to address the question has reached the tation period does not make “the habeas rem- same conclusion.4 edy ‘inadequate or ineffective’ to test the le- gality of detention.”5

Congress and the Supreme Court regulated 3 (...continued) the procedure and form of the writ throughout may require it.” U.S. CONST. art. 1, § 9, cl. 2. the twentieth century.6 For example, before

4 Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 113 (2d Cir.) (“[B]ecause AEDPA’s 5 Turner, 177 F.3d at 392 (stating that “we one-year statute of limitations leaves habeas peti- agree with the reasoning of the Tenth Circuit in tioners with some reasonable opportunity to have Miller). See Miller, 141 F.3d at 977 (citations their claims heard on the merits, the limitations pe- omitted). riod does not render the habeas remedy ‘inadequate 6 or ineffective to test the legality of detention,’ and The Supreme Court has barred habeas claims therefore does not per se constitute an unconstitu- where the petitioner failed to appeal in state courts, tional suspension . . . .”) (citations omitted), cert. the petitioner’s successive petitions abused the denied, 531 U.S. 873 (2000); Weaver v. United writ, and the petitioner relied on Supreme Court States, 195 F.3d 123, 125 (2d Cir. 1999) (finding decisions post-dating the final conviction. Harris that 28 U.S.C. § 2255’s time limit for federal pri- v. Reed, 489 U.S. 255, 263 (1989) (“[A] proce- soners did not violate Suspension Clause even dural default does not bar consideration of a fed- though § 2255 does not include tolling provisions); eral claim on either direct or habeas review unless Davis v. Bumgarner, 201 F.3d 324 (4th Cir. 1999) the last state court rendering judgment in a case (table) (unpublished) (available at 1999 WL ‘clearly and expressly’ states that its judgment 1032617) (denying COA because petitioner failed rests on a state procedural bar.”) (citations omit- to satisfy § 2254’s constitutional statute of limita- ted); McClesky v. Zant, 499 U.S. 467, 503 (1991) tions); Hampton v. M.K. Madding, 232 F.3d 894 (abuse of writ); Stringer v. Black, 503 U.S. 222, (6th Cir. 2000) (table) (unpublished) (available at 236-37 (1992) (explaining that habeas court need 2000 WL 800724) (rejecting Suspension Clause only look to decisional law at time of final convic- argument because § 2254 gave petitioner a year to tion). pursue claims and petitioner provided zero evi- dence that he diligently pursued those claims), cert. In the only cases in which the Supreme Court denied, 531 U.S. 1081 (2001); Miller v. Marr, 141 found that statutes raised Suspension Clause ques- F.3d 976, 978 (10th Cir. 1998) (emphasizing equit- tions, the Justices rejected interpretations of the able tolling and absence of claimed actual inno- statutes that would have stripped federal courts of cence or incompetence); Wyzykowski v. Dep’t of all jurisdiction over a first habeas application. INS Corrections, 226 F.3d 1213, 1216-17 (11th Cir. v. St. Cyr, 533 U.S. 289, 298, 300-03 (2001); 2000) (explaining the similarities to abuse of the Felker, 518 U.S. at 660-61 (noting that “[n]o pro- writ doctrine, availability of equitable tolling, and vision of Title I mentions our authority to entertain open question of actual innocence). (continued...)

AEDPA was enacted, the courts could dismiss choices about the “proper scope of the writ.” a pet ition if the state had been “prejudiced in Turner, 177 F.3d at 392. Because § 2244(d) its ability to respond to the petition by delay in does not significantly impede the petitioner its filing unless the petitioner shows that it is from bringing a first habeas petition, and Con- based on grounds of which he could not have gress has considerable power to alter the form had knowledge by the exercise of reasonable of the writ, AEDPA’s statute of limitations diligence before the circumstances prejudicial does not unconstitutionally render the habeas to the state occurred.” 28 U.S.C. § 2254 Rule remedy “inadequate or ineffective.” Given 9(a) (1994 ed.). 7 Similarly, § 2244(d) estab- binding Supreme Court and Fifth Circuit pre- lishes a statute of limitations requiring the pe- cedent, no reasonable jurist would find this titioner to bring any claim within one year of point debatable. final conviction. The application for COA is DENIED. Replacing rule 9(a)’s standard for dismissal with a bright-line rule does not obviously im- pede prisoners’ rights to bring habeas applica- tions.8 We owe deference to Congress’s

6 (...continued) original habeas petitions,” and that the statute “makes no mention of our authority to hear habeas petitions filed as original matters in this Court.”); Ex parte Yerger, 8 Wall. 85, 102 (1869) (“We are not at liberty to except from [habeas corpus juris- diction] any cases not plainly excepted by law.”). 7 Before AEDPA was enacted, the Supreme Court held that rule 9(a) and the habeas statutes laid out the proper and exclusive criteria for dis- missing untimely applications. Lonchar, 517 U.S. at 322-23. 8 Many statutory and judicial qualifications soften the harshness of AEDPA’s time limit. First, § 2244 tolls the time limit for the period of time that unconstitutional state action prevents the peti- tioner from filing an application. 28 U.S.C. § 2244(d)(1)(B). Second, limitations run only from when the Supreme Court establishes a new constitutional right and makes the right retroactive 8 on appeal. 28 U.S.C. § 2244(d)(1)(C). Third, the (...continued) statute tolls the running of limitations for claims § 2244(d)(1)(D). Fourth, this court, like every oth- whose factual predicates could not have been dis- er federal court, has interpreted § 2244 to include covered by exercising due diligence. 28 U.S.C. an exception for equitable tolling. Davis v. John- (continued...) son, 158 F.3d 806, 811 (5th Cir. 1996).