Godfrey v. Dretke

United States Court of Appeals Fifth Circuit F I L E D In the January 10, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________

m 03-21139 _______________

MARK DAVID GODFREY,

Petitioner-Appellant,

VERSUS

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

_________________________

Appeal from the United States District Court for the Southern District of Texas _________________________

Before HIGGINBOTHAM, SMITH, and tions”). In December 2000 he filed a state BENAVIDES, Circuit Judges. application for postconviction relief, alleging that the 1998 conviction was erroneously JERRY E. SMITH, Circuit Judge: enhanced by the expired convictions. The Texas Court of Criminal Appeals (“TCCA”) In 1998, Mark Godfrey was convicted of rejected that application. In October 2001 burglary of a habitation and was sentenced to Godfrey filed two more state applications for fifty years’ imprisonment. His sentence was postconviction relief alleging the same enhanced by expired convictions from 1982 deficiencies as in his December 2000 applica- and 1991 (together, the “expired convic- tion but styling the new applications as direct

attacks on the 1982 and 1991 convictions. 2000 application. The TCCA rejected these petitions as well. •October 26, 2001: Godfrey filed two state Godfrey filed the instant petition under 28 postconviction applications directly chal- U.S.C. § 2254 in April 2002. The district lenging validity of 1982 and 1991 convic- court found his federal petition to be tions. time-barred, reasoning that his October 2001 petitions had not tolled the applicable statute •January 25, 2002: Statute of limitations of limitations under the Antiterrorism and expired (as determined by district court). Effective Death Penalty Act of 1996 (“AEDPA”). The court decided, however, •February 6, 2002: TCCA denied October that the issue is debatable and issued a cer- 2001 state postconviction applications. tificate of appealability (“COA”) on the tolling question. •April 28, 2002: Godfrey filed the instant § 2254 petition challenging 1998 burglary I. conviction and sentence. A. The following is a chronology of important B. events beginning with Godfrey’s 1998 convic- In his December 2000, application for post- tion (the “current conviction”): conviction relief, Godfrey argued that his sen- tence had been erroneously enhanced by in- •October 14, 1998: Convicted of burglary valid convictions.1 The TCCA denied the of a habitation. application on June 13, 2001. One hundred seventy-seven days elapsed between the filing •December 16, 1999: Current conviction and the denial. and sentence affirmed on direct appeal.

•May 3, 2000: TCCA refused petition for discretionary review of the current con- 1 Specifically, Godfrey sought postconviction viction. relief alleging, with respect to his 1982 conviction, that he had been sentenced to five years’ probation •August 1, 2000: Conviction became final and that his 1988 revocation hearing was outside by expiration of 90-day period to petition the five-year probationary period. Therefore, he for writ of certiorari (as found by district argued, under Texas law the conviction was not court). final and could not be used for enhancement purposes. He also contended that the revocation was invalid because his counsel was absent during •December 18, 2000: Godfrey filed single the revocation hearing. state application for postconviction relief challenging expired convictions insofar as Godfrey argued that his 1991 conviction was they were used to enhance current convic- invalid because his appointed counsel failed to ap- tion. pear at the preliminary hearing and plea negotia- tions with the prosecutor, the latter of which God- •June 6, 2001: TCCA denied December frey avers resulted in an uncounseled plea agreement.

On October 26, 2001, Godfrey filed two on expired convictions used to enhance current state postconviction applications challenging sentences generally do not state a cognizable the expired convictions directly. The sub- claim in § 2254 proceedings where the state stance of the challenges were identical to those challenges to the expired convictions are articulated in Godfrey’s challenge to the use of themselves time-barred. The major exception the two convictions for enhancement. The to that rule involves cases in which the habeas TCCA rejected these applications on February application alleges a failure to appoint counsel. 6, 2001. One hundred five days elapsed Deciding that Godfrey did not fit under the between the filing and the rejection. exception, the court determined that he could not collaterally attack the expired convictions On April 28, 2002, Godfrey filed the instant in a § 2254 proceeding. Based on that § 2254 petition, challenging the sentence reasoning, the court then opined that associated with the current conviction, arguing Godfrey’s state postconviction applications (1) that the trial court had erroneously consid- challenging the expired convictions did not toll ered the expired convictions because the state limitations under § 2244(d)(2) because they did not notify him of its intent to introduce were not challenges to the “pertinent judgment them; (2) that the state court erroneously used or claim.” the convictions to enhance his sentence (for the same reasons he stated in his state applica- II. tion for postconviction relief); and (3) that he Section 2244(d)(2) provides that “[t]he received ineffective assistance of trial counsel. time during which a properly filed application The state moved for summary judgment, for State postconviction or other collateral alleging that the petition was time-barred. review with respect to the pertinent judgment or claim is pending shall not be counted to- The district court agreed, determining that ward any period of limitation.” The funda- because Godfrey’s 1998 conviction had be- mental issue is whether Godfrey’s two Octo- come final on August 1, 2000, and because his ber 2001 state postconviction applications state postconviction application tolled the tolled the limitations period for filing a § 2254 limitations period for 177 days, his petition petition regarding his current conviction. If was untimely as of January 25, 2002. It there- they did, Godfrey’s April 2002 federal habeas fore rejected his April 2002 § 2254 petition. petition challenging his 1998 conviction was timely; if they did not, his petition was Godfrey filed a FED. R. CIV. P. 59(e) mo- time-barred under § 2244(d)(2). tion to arrest judgment, arguing that his Octo- ber 2001 applications challenging the expired As a preliminary matter, we divide our convictions should have tolled limitations and analysis into three components: (1) the juris- that his April 2002 § 2254 petition was not dictional component, i.e., whether Godfrey time-barred. The district court rejected this was “in custody” for purposes of federal argument. habeas jurisdiction; (2) whether his state petition states a cognizable claim under § The district court relied on Lackawanna 2254; and (3) the limitations statute’s tolling County Dist. Attorney v. Coss, 532 U.S. 394, requirements. The primary focus is the third 401-02 (2001), for the proposition that attacks

component.2 Larry v. Dretke, 361 F.3d 890, 893 (5th Cir.), cert. denied, 125 S. Ct. 141 (2004). Accord- A. ing the state petitions some level of judicial The state does not challenge federal juris- review, the TCCA exercised jurisdiction diction over Godfrey’s application. In Maleng sufficient to qualify Godfrey’s state applica- v. Cook, 490 U.S. 488, 490-91 (1989), the tions as “properly filed” under the Court held that § 2254’s “in custody” require- § 2244(d)(2) requirement.4 ment is satisfied when a habeas petitioner attacks an expired conviction used to enhance III. his current punishment if the § 2254 petition Regarding the denial of habeas relief, the can be read as a challenge to the current con- district court’s findings of fact are reviewed viction.3 for clear error and issues of law de novo. Moody v. Johnson, 139 F.3d 477, 480 (5th B. Cir. 1998). Section 2244(d)(2) provides for tolling Section 2244(d)(2) states that “[t]he time during the pendency of a properly filed appli- during which a properly filed application for cation for state postconviction relief with State postconviction or other collateral review respect to the pertinent judgment or claim. A with respect to the pertinent judgment or state application is “properly filed” if it meets claim is pending shall not be counted toward certain formal requirements and if the court in any period of limitation” (emphasis added). which it is filed has jurisdiction to consider it. See Artuz v. Bennett, 531 U.S. 4, 9-10 (2000); A. The district court correctly observed that, although federal courts may exercise jurisdic- 2 tion over habeas petitions that attack expired We address only the tolling question. The dis- trict court granted a COA that actually raises six convictions used to enhance a sentence, the issues, but given that the entirety of the court’s Supreme Court has said that they generally do opinion seems to concern the tolling issue, we infer not state a cognizable legal claim. See Coss, (and it seems clear from the briefs) that it meant to 532 U.S. at 402. The Court has recognized an grant a COA on that issue alone. exception where the conviction “was obtained [because of] a failure to appoint counsel in 3 Maleng, however, left open the question of violation of the Sixth Amendment,” as set “the extent to which the [prior expired] conviction forth in Gideon v. Wainwright, 372 U.S. 335 itself may be subject to challenge in the attack (1963). See Coss, 532 U.S. at 404. In those upon the [current] senten[ce] which it was used to enhance.” Maleng, 490 U.S. at 484. The Maleng Court therefore noted explicitly the distinction 4 between the inquiry surrounding whether the “in The applications were denied without written custody” requirement is satisfied and the inquiry order, indicating that they were “accorded some surrounding whether the petitioner can state a cog- level of judicial review” by the TCCA. See Jack- nizable claim. This is not the same operative son v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998) distinction creating confusion in this case, but it (observing that in Texas writ jurisprudence, a de- underscores the need to distinguish between the nial of relief instead of a dismissal by the TCCA cognizability requirements and other components of disposes of the merits of the claim); Ex Parte Tor- the tolling statute. res, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).

instances, the petitioner may attack the expired Although the COA did not issue for this conviction used to enhance a current one question, the district court was correct in irrespective of whether the expired conviction determining that Godfrey’s state petition did remains open to direct or collateral attack. not fit within the Coss exception for purposes of determining legal cognizability. Where the The question whether Godfrey may state a enhanced conviction is obtained after failure to cognizable claim under § 2254, however, is appoint counsel in violation of the Sixth distinct from the issue of tolling. The question Amendment,6 the petitioner may attack the in this appeal is whether Godfrey’s October enhanced sentence irrespective of the status of 2001 state habeas applications tolled the convictions used to enhance it. Godfrey statute of limitations under § 2244(d)(2). The basically alleges that his plea of nolo conten- district court seems to have conflated the two dere in the 1991 conviction) and his probation inquiries, reasoning that, because Godfrey revocation in the 1982 conviction) were failed to demonstrate that he was without uncounseled. The district court adequately counsel during proceedings associated with the explained why Godfrey does not qualify for expired convictions, his state petitions the Coss exception, but the cognizability issue attacking the expired convictions did not toll is not before us now. limitations for his federal petition.5 B. 5 Section 2244(d)(2)provides that “[t]he time Essentially, the district court determined that during which a properly filed application for because Godfrey’s October 2001 applications did State post-conviction or other collateral re- not state cognizable § 2254 claims, they could not view with respect to the pertinent judgment or toll the § 2244(d)(2) statute of limitations. There claim is pending shall not be counted toward appears to be no Fifth Circuit authority on this is- sue, but that reasoning appears both (1) coun- any period of limitation.” The important issue ter-intuitive, given that it would render the statute is whether Godfrey’s October 2001 state of limitations inquiry entirely redundant of a merits habeas applications challenging the expired inquiry, and (2) counter to the law of other circuits. convictions constitute attacks on the “pertinent judgment or claim,” namely the 1998 Other courts of appeals have found that a state conviction that the two expired convictions application attacking expired convictions insofar as were used to enhance. On no occasion has they are used for enhancement purposes satisfies this court had to parse carefully the relevant the “pertinent judgment” component of the tolling phraseology and decide what, for purposes of inquiry. See, e.g., Ford v. Moore, 296 F.3d 1035, 2244(d)(2), constitutes a pertinent judgment 1038, 1040 (11th Cir. 2002) (tolling limitations and what constitutes a pertinent claim. period regardless of whether properly filed state application raised a federally cognizable claim); Sweger v. Chesney, 294 F.3d 506, 509 (3d Cir. 2002) (tolling limitations period during pendency 5 (...continued) of state postconviction application regardless of the even if the particular application does not include claims raised therein); Tillema v. Long, 253 F.3d a claim later asserted in the federal habeas 494, 502 (9th Cir. 2001) (stating that the “period petition”). of limitation is tolled during the pendency of a state 6 application challenging the pertinent judgment, This determination is made pursuant to Gid- (continued...) eon, 372 U.S. at 335.

Godfrey argues that Dilworth v. Johnson, lenge his current conviction—the subject of his 215 F.3d 497 (5th Cir. 2000), controls the § 2254 petition. The text of his federal tolling issue. That case dealt with a similar petition incorporates claims from his Decem- situation, where the federal petitioner chal- ber 2000 state habeas application challenging lenged, in a state writ application, a conviction the expired convictions used for enhancement that was used to enhance the current convic- purposes. tion. The Dilworth court, id. at 501, found that a state application challenging enhancing On the facts of this case, Godfrey’s October convictions tolled the limitations period for 2001 applications also did not challenge a filing a federal petition challenging the current pertinent judgment for tolling purposes. Our conviction. The Dilworth petitioner both (1) decision in this regard is, however, quite plainly stated in his state applications that he limited. We so decide only because, on the was challenging the prior conviction insofar as instant facts, it is impossible to construe God- it was being used to enhance his current one frey’s October 2001 state petitions as chal- and (2) raised the same claims in his state and lenging the enhanced conviction. In Dilworth, federal petitions. Id. 215 F.3d at 501, the court construed the pe- titioner’s state applications as challenges to the We decline Godfrey’s invitation to equate expired convictions insofar as they questioned the set of facts with those in Dilworth, and we the current conviction in spite of cosmetic instead rely on an alternative rationale in wording to the contrary. We did so because affirming.7 The Dilworth petitioner’s state we were “unpersuaded that these minor habeas application alleged that he received differences warrant the conclusion that Dil- ineffective assistance of counsel with respect worth’s state habeas application was not . . . to his expired conviction. That court stated [properly filed] pursuant to section 2244- that “[c]ommon sense dictates that Dilworth’s (d)(2).” Id. It is worth noting that the Dil- second state habeas conviction challenged a worth court’s inquiry focused on whether the ‘pertinent judgment or claim’ under the plain application was “properly filed” and not on language of Section 2244(d)(2).” whether it challenged a pertinent judgment or claim; but the fact that we held the state appli- Neither of Godfrey’s October 2001 state cation to toll limitations suggests that, at least postconviction applications purports to chal- implicitly, we thought that the application in- deed made such a challenge. 7 The state encourages us to refuse to treat Godfrey, on the other hand, filed a habeas Dilworth as controlling, but for a different reason. petition in December 2000 challenging the fact The state urges that Coss overrules Dilworth. For that his 1998 sentence had been inappro- the reasons discussed above, Coss deals with priately enhanced by invalid convictions. His whether a state petition must include a cognizable federal claim, not whether such a claim (or failure October 2001 postconviction applications to make it) in a state petition tolls the applicable challenged those convictions themselves. We statute of limitations. The state devotes consider- cannot construe the October 2001 applica- able time attempting to re-cast Coss’s ruling on a tions as the Dilworth court construed the petitioner’s ability to state cognizable claims as a applications before it. Because Godfrey filed ruling on the types of state post-conviction pro- an application challenging the expired convic- cedures that toll limitations.

tions for enhancement purposes in December Cir. 2002). We nonetheless decline to find 2000, we cannot interpret the October 2001 Godfrey’s October 2001 state applications to application as making precisely the same be challenges to the “pertinent claim,” but we attack. For those reasons we must construe distinguish the instant facts from those in the application as challenging different judg- Smith. ments (the expired convictions),8 and, for reasons we explain, prudence counsels against Our decision is narrow, however, and interpreting those applications as challenges to should not be interpreted categorically to a pertinent claim. time-bar all challenges to expired state convic- tions as beyond the “pertinent claim” language C. of § 2244(d)(2). We instead limit our reason- The remaining, and indeed most important, ing to situations, such as here, in which the inquiry, then, is whether Godfrey’s state petitioner previously submitted a prior state petitions qualify as challenging a “pertinent postconviction application (attacking the cur- claim” under § 2244(d)(2). Again, Dilworth rent conviction) making precisely the same does not control, because that petitioner’s substantive claims that he makes in his current state claims were construed as attacking an ones (attacking the expired convictions).9 In enhancement of the current conviction rather Smith, the petitioner did not submit multiple than the expired ones themselves. The Dil- state petitions making the same underlying worth court noted that the state petitions substantive claims. See id. at 811-12. obviously challenged a pertinent judgment, and the court made no attempt to determine Allowing the limitations period to toll in whether they also challenged a pertinent claim. these sorts of situations would encourage See id. That is the task before us here. defendants to make entirely redundant argu- ments in state court, styled in the first effort as At least one circuit has found that an appli- attacks on expired convictions insofar as they cation relating to an expired state sentence are used to enhance a current sentence and, on used to enhance a current conviction consti- the second, as attacks on the expired convic- tutes a “pertinent claim” for tolling purposes. tions directly. Under Godfrey’s theory, the See Smith v. Duncan, 297 F.3d 809, 814 (9th more enhancing convictions a petitioner has, the more tolling time he can accumulate before filing a federal petition. Habitual criminals 8 In the cases previously cited discussing tolling status where the petitioner advanced a non-cog- nizable legal claim (see note 5, supra), all of the 9 state applications attacked the same judgment at- Attacks on expired convictions may be cap- tacked in the federal petitions. The facts of this able of tolling the limitations period, but only case, however, cannot support such an interpre- where a court may construe those applications as tation of Godfrey’s October 2001 state applica- raising a pertinent claim. Here, where Godfrey’s tions. That logical leap is always achieved by con- October 2001 applications made precisely the same struing the state applications regarding expired arguments that his December 2000 applications convictions as challenges to enhanced current ones. did, and where the December 2000 applications In light of his December 2000 postconviction were styled as an attack on the expired convictions application, however, Godfrey’s petition can bear insofar as they were used to enhance Godfrey’s no such interpretation. sentence, tolling should not be allowed.

would enjoy a dramatic advantage over AFFIRMED. first-time offenders in the sense that they would have more enhancing convictions available to toll limitations under § 2244- (d)(2). Although such considerations may justify a more sweeping ruling—that state postconviction proceedings challenging ex- pired convictions should not toll limitations under any circumstances—at this time we merely adopt the more limited rationale gov- erning situations in which the validity of the expired convictions has already been attacked in a state post conviction objection to the enhanced sentence.

IV. Godfrey argues that because Coss was decided after he sought state postconviction relief, it should not be retroactively applied to him in a manner that he alleges violates the Ex Post Facto Clause. This argument is unavail- ing on several fronts, but we nonetheless decline to reach it on the merits.10

We need not rely on the retroactive appli- cation of Coss to rule that Godfrey’s § 2254 petition is time-barred. We instead rely on analysis articulated in part III, supra, that Godfrey’s October 2001 state applications did not challenge a “pertinent judgment or claim” within the meaning of § 2244(d)(2).

10 The ex post facto claim is frivolous. For an ex post facto violation to occur, a new law must create a sufficient risk of increasing the punishment attached to the crimes. See Warren v. Miles, 230 F.3d 688, 692 (5th Cir. 2000). Coss did not announce a new law that increased Godfrey’s punishment for his burglary conviction. Of course, one could reason that the expected value of his sen- tence increased as a result of the Coss presumption against challenges to sentences enhanced on the basis of expired convictions, but that connection is far too attenuated to merit endorsement here.