Ramos v. Lumpkin ( 2023 )

Case: 21-50775 Document: 00516714792 Page: 1 Date Filed: 04/17/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 21-50775
Summary Calendar FILED
____________ April 17, 2023
Lyle W. Cayce
Isidro Ramos, III, Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-1448
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Following this court’s grant of a certificate of appealability, Isidro
Ramos, III, Texas inmate # 02150358, appeals the dismissal, as time-barred,
of his 28 U.S.C. § 2254 petition challenging his convictions for sexual assault
of a child and continuous sexual abuse of a child. Ramos contends that the
district court erred by excluding from its statutory tolling analysis the nearly
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-50775 Document: 00516714792 Page: 2 Date Filed: 04/17/2023
No. 21-50775
700-day pendency of his motions for postconviction DNA testing under
article 64 of the Texas Code of Criminal Procedure and his attendant appeal
of the denial of those motions. See generally 28 U.S.C. § 2244(d). The State
concurs.
Under § 2244(d), a petitioner must bring a federal challenge to his
state conviction or sentence within one year of, relevantly, “the date on
which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” § 2244(d)(1)(A); see Roberts
v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003). However, “[t]he time during
which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under [§ 2244(d)].” § 2244(d)(2)
(emphasis added). Because Ramos did not argue in the district court that his
federal petition was timely based on his postconviction DNA testing motions,
we review that issue for plain error. See United States v. Redd, 562 F.3d 309,
313 & n.8 (5th Cir. 2009).
“[A] motion to test DNA evidence under Texas Code of Criminal
Procedure article 64 constitutes ‘other collateral review’ and thus tolls
the . . . one-year limitations period under 28 U.S.C. § 2244(d)(1).” Hutson
v. Quarterman, 508 F.3d 236, 240 (5th Cir. 2007). Thus, the failure to
include the pendency of Ramos’s DNA testing motion was error, and that
error was clear or obvious in light of Hutson. See Redd, 562 F.3d at 314. As
the State concedes, if that period is included, Ramos’s petition was timely.
Moreover, the error affected Ramos’s substantial rights and seriously affects
the fairness, integrity, or public reputation of judicial proceedings by
depriving Ramos of the opportunity to have the merits of his constitutional
claims considered in an initial § 2254 petition. See Wallace v. Mississippi, 43
F.4th 482, 500–01 (5th Cir. 2022).
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Case: 21-50775 Document: 00516714792 Page: 3 Date Filed: 04/17/2023
No. 21-50775
Accordingly, we REVERSE the judgment of the district court
dismissing Ramos’s § 2254 petition as time-barred and REMAND this
matter for further proceedings consistent with this opinion.
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