Gordon v. Dretke , 107 F. App'x 404 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 10, 2004
Charles R. Fulbruge III
Clerk
No. 03-10798
Summary Calendar
DAVID MICHAEL GORDON,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-1095-D
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
David Michael Gordon, Texas prisoner # 877573, appeals the
district court’s denial of his 28 U.S.C. § 2254 claim that trial
counsel was ineffective in failing to object to the introduction
of the unadjudicated extraneous offense testimony of Leslie
Weaver at the punishment hearing.
Under Texas law applicable to offenses committed before
September 1, 1993, Weaver’s testimony was not admissible at the
*
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this opinion should not be published and is not precedent except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. 03-10798
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punishment hearing and should not have been considered. TEX. CODE
CRIM. PROC. ANN. art. 37.07 § 3(a); Grunsfeld v. State, 843 S.W.2d
521, 523-26 (Tex. Crim. App. 1992); Givens v. Cockrell, 265 F.3d
306, 309 n.3 (5th Cir. 2001). Because the sentencing transcript
reveals that the court considered Weaver’s testimony in
determining Gordon’s sentence, a showing of prejudice is not
precluded. See Strickland v. Washington, 466 U.S. 668, 689-94
(1984). However, the portion of the sentencing transcript
containing Weaver’s testimony and any objections thereto is not
part of the record in this court. Thus, it is impossible for
this court to determine whether Gordon can satisfy the deficient-
performance-prong of Strickland by showing that counsel failed to
object to the introduction of Weaver’s testimony. See id.
The respondent reasserts the time-bar as a basis for denying
relief. The two cases relied on by the district court in denying
the respondent’s motion to dismiss Gordon’s petition as time-
barred are distinguishable from the instant case. See Emerson v.
Johnson, 243 F.3d 931, 934-35 (5th Cir. 2001); Lookingbill v.
Cockrell, 293 F.3d 256, 261 (5th Cir. 2002), cert. denied, 537
U.S. 1116 (2003). In both cases, after the Texas Court of
Criminal Appeals (TCCA) denied state habeas relief, the
petitioner filed, within the one-year period of § 2244(d), a
motion to reconsider. See Emerson, 243 F.3d at 932, 935-36;
Lookingbill, 293 F.3d at 261. In the instant case, Gordon did
not file his motion for reconsideration until May 17, 2002, after
No. 03-10798
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the one-year period had expired. Thus, Gordon’s petition
arguably was untimely unless the late notice from the TCCA of the
denial of state habeas relief provided a basis for equitable
tolling.
Gordon asserted that he received the TCCA’s notice of the
denial of habeas relief on March 15, 2002. He did not file his
§ 2254 petition until two months later, on May 14, 2002. This
court has indicated that a one-month delay in filing a § 2254
petition after notice from the state court of the denial of
relief does not preclude equitable tolling, but a four-month
delay does. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir.
2001); Phillips v. Donnelley, 216 F.3d 508, 511 (5th Cir.),
modified on reh’g, 223 F.3d 797 (2000). See also Simmons v.
Johnson, No. 98-21054 (5th Cir. Feb. 17, 2000)(unpublished).
(Equitable tolling not warranted where petitioner waited more
than one month after receiving notice of the denial of state post
conviction relief to file his § 2254 petition.)
Accordingly, the district court’s denial of Gordon’s claim
that counsel was ineffective for failing to object to the
introduction of Weaver’s testimony is VACATED, and this case is
REMANDED for proceedings consistent with this opinion.
VACATED AND REMANDED.