Frost v. Armstrong ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60982
Conference Calendar
CARTER EARL FROST,
Petitioner-Appellant,
versus
ROBERT BUBBA ARMSTRONG,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:01-CV-108-S
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October 29, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
The district court has granted Carter Earl Frost,
Mississippi prisoner #44758, a certificate of appealability (COA)
to appeal the denial of his 28 U.S.C. § 2254 application as
successive and time-barred. Appellate review is limited to those
issues. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.
1997). Frost argues that a habeas application that is filed
after a previous petition was dismissed without being adjudicated
on the merits for failure to exhaust state remedies is not a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-60982
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successive application and that he is excused from the
requirement that his application not be successive or time-barred
because he was hindered from complying with the state statutory
rules.
Frost’s application challenged his prior guilty-plea
conviction, which was used as a basis of enhancing his current
sentence for his 1991 conviction. While Frost is no longer “in
custody” for the prior conviction, the jurisdictional requirement
of being “in custody” is satisfied by considering the petition as
a challenge to the current conviction. See Dilworth v. Johnson,
215 F.3d 497, 500 (5th Cir. 2000). However, if Frost’s
application is so construed, it is successive. His prior federal
habeas application was not dismissed for failure to exhaust state
remedies, but for procedural bar. Frost did not receive
authorization from this court, and the district court was correct
that it did not have jurisdiction to hear the application because
Frost could have raised his challenge to the prior conviction at
the time his initial petition was filed. See 28 U.S.C.
§ 2244(b)(3)(A); United States v. Orozco-Ramirez, 211 F.3d 862,
867 (5th Cir. 2000).
The district court’s alternative holding that Frost’s
application is time-barred is also correct. Frost fails to
describe how the alleged state-created impediment actually
impeded him from filing the instant 28 U.S.C. § 2254 petition at
an earlier date or when this alleged state-created impediment was
No. 01-60982
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removed. Thus, the court considers the one-year time period as
beginning on the effective date of the Antiterrorism and
Effective Death Penalty Act. See 28 U.S.C. § 2244(d); Flanagan
v. Johnson, 154 F.3d 196, 199-200 & n.2 (5th Cir. 1998).
Neither of Frost’s state-court habeas applications were
pending during that one-year period and thus did not toll that
period. See 28 U.S.C. § 2244(d)(2). Frost’s first 28 U.S.C.
§ 2254 application also did not toll the limitation period. See
Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999). Because
Frost’s instant application was signed well outside the one-year
period, his habeas application is time-barred.
Frost’s application is successive and time-barred. The
district court’s judgment is AFFIRMED. Frost’s motion to have
this court declare respondent’s brief moot is DENIED.