Rojas v. Cockrell ( 2002 )

                                   FOR THE FIFTH CIRCUIT
                                                 m 01-11204
                                         LEONARD URESTI ROJAS,
                                              JANIE COCKRELL,
                                       INSTITUTIONAL DIVISION,
                                 Appeal from the United States District Court
                                     for the Northern District of Texas
                                                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
    2001 U.S. Dist. LEXIS 13988
                         in Cases of Rebellion or Invasion the public Safety
    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-
    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
                                                                 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
          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
    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
    531 U.S. 873
     (2000); Weaver v. United                writ, and the petitioner relied on Supreme Court
    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
    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
    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
    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.”).
          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.
          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
    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).