Opinion
Civil Action No. 3:01cv1063-H
April 5, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the district court in implementation thereof, the subject cause has been previously referred to the United States Magistrate Judge. The findings, conclusions, and recommendations of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254.
Parties: Petitioner David Jeffery Royale (Royale) is an inmate confined at the Michael Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) at Tennessee Colony. Respondent is the Director of TDCJ-ID.
Statement of the Case: On September 4, 1994, Royale pled guilty to aggravated robbery in Hunt County, Texas, cause number 17,214. Ex parte Royale, 46, 236-02 at 26-31. The trial court deferred adjudication of Royale's guilt and placed him on probation for a ten-year period. Id. at 26-27. Subsequently, on February 28, 1997, the state moved the trial court to revoke Royale's unadjudicated community supervision (previously referred to as probation) and for a final adjudication of guilty, alleging that Royale had violated various paragraphs related to the conditions for his community supervision/probation as set out in the court's original order. Id. at 51-52. Thereafter, the court, on December 17, 1997, adjudicated Royale guilty and sentenced him to forty years imprisonment in the TDCJ-ID. Id. at 43-44.
Petitioner's punishment was enhanced by two prior felony convictions, conspiracy and possession of marijuana. See Appl. at 33-34 (Bill of Indictment), 43 (Judgment Adjudicating Guilt).
Royale subsequently filed a notice of appeal. On February 8, 2000, the Fifth Court of Appeals dismissed Petitioner's appeal for want of jurisdiction. See Royale v. State, No. 05-9800066-CR, 2000 WL 136788, (Tex.App.-Dallas 2000, no pet.) (attached to Respondent's Motion to Dismiss, Ex. A). Petitioner did not file a petition for discretionary review with the Texas Court of Criminal Appeals.
Royale subsequently challenged his conviction in both state and federal court. On March 14, 2001, he filed a state application for writ of habeas corpus pursuant to Texas Code of Criminal Procedure art. 11.07. Ex Parte Royale, Appl. No. 46, 236-02 at 4. The Texas Court of Criminal Appeals denied his application without a written order on May 16, 2001. See Appl. at cover. On October 6, 2000, Petitioner filed a federal habeas petition in this court pursuant to 28 U.S.C. § 2254, which, thereafter, the district court dismissed without prejudice for failure to exhaust state remedies. See Royale v. Johnson, 3:00-CV-2213-M, 2001 WL 238130, (N.D. Tex., March 7, 2001).
In his present petition, filed on June 5, 2001, Petitioner alleges that (1) the trial court lacked jurisdiction to sentence him, (2) the trial court improperly sentenced him during his initial plea of guilty, as well as at his adjudication of guilt; (3) the prosecutor withheld exculpatory evidence with regard to his enhancements; (4) his sentence was improperly enhanced by offenses which were committed outside the ten-year statute of limitations in violation of Texas Rule of Evidence 609(b); (5) he received ineffective assistance of counsel. See Pet. ¶ 20 and Mem. Attached.
In response to the instant petition and this court's show cause order, on December 12, 2001, Respondent filed an answer together with copies of Royale's prior state proceedings. As of this date, Royale has not filed a reply. Respondent claims, inter alia, that Royale has failed to exhaust state remedies on ground 3, supra, and in the alternative that consideration of this ground is procedurally barred.
Previously Respondent filed a motion to dismiss on limitations grounds which the court denied on September 18, 2001, pursuant to the magistrate judge's recommendation filed on August 21, 2000. The recommendation, in turn, was predicated on the Texas Court of Criminal Appeal's decision in Ex Parte Johnson, 12 S.W.3d 472 (Tex.Crim.App. 2001), wherein the court found that a criminal conviction did not become final until the intermediate appellate court issued its mandate. In Vanduren v. Cockrell, No. 00-20899, (5th Cir. January 11, 2002) ( per curiam) ( see Attach. Ex. 1), the Fifth Circuit held, in an unpublished opinion, that for limitations purposes under the provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), that a federal district court's determination that a petitioner's conviction become final thirty days after the date on which his motion for rehearing in the intermediate Texas appellate court was denied rather than the date on which the court issued its mandate was not clearly erroneous. In her answer dated December 12, 2001, Respondent does not re-urge her contention that Royale's petition is time-barred.
On March 15, 2002, Royale submitted a short letter with some attachments, including a newspaper article.
Due to Respondent's omission of Royale's first ground — i.e., the trial court's lack of jurisdiction, supra — she has numbered this ground as number 2. See Resp.'s Br. at 7-10.
Findings and Conclusions:
Before addressing the merits of Petitioner's allegations, the court considers the lack of exhaustion/procedural default issue raised by Respondent. Federal jurisprudence has long required that a state prisoner normally must exhaust all available state remedies before seeking federal habeas relief See Nobles v. Johnson, 127 F.3d 409, 419 (5th Cir. 1997), cert. denied 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998) (citing Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886)); see also 28 U.S.C. § 2254(b)(1)(A) (West 2000). To exhaust state remedies, a habeas petitioner must have "fairly presented" the substance of his claim to the state courts. Id. at 420 citing Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). The exhaustion requirement is not satisfied if the prisoner presents new legal theories or factual claims in his federal habeas petition. Id. (citing Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982)). Additionally, Respondent contends that a review on the merits is foreclosed under the procedural default doctrine. See Nobles, 127 F.3d at 420. A procedural default can occur when a petitioner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. (quoting Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991)).
Since 1994, the Texas Court of Criminal Appeals has applied a strict abuse-of-the-writ doctrine, tempered only by an exception for cause. See Barrientes v. Johnson, 221 F.3d 741, 758-59 (5th Cir. 2000), cert. denied 121 S.Ct. 902, 148 L.Ed.2d 948 (2001) (citing Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994) (en banc) (the court announced that it would as a "rule" dismiss as abuse of the writ "an applicant for a subsequent writ of habeas corpus rais[ing] issues that existed at the time of his first writ.")). Art. 11.07 Section 4 would prohibit Royale from filing a successive state habeas application, unless the application alleges and establishes that the grounds asserted therein were not and could not have been raised in his first habeas application. See Ex parte Barber, 879 S.W.2d at 891. After reviewing Royale's article 11.07 application, it is clear that the only allegations he presented to the Texas state courts are 1, 2, 4, and 5 above. Royale's remaining claim, i.e., 3 above, occurred prior to the conclusion of his criminal trial and was known to him. Therefore, he cannot satisfy art. 11.07 § 4(a)(1) by establishing that "the factual or legal basis for [such claims] were unavailable to him when he filed his art. 11.07 application" on March 14, 2001. See Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995), cert. denied 515 U.S. 1153, 115 S.Ct. 2603, 132 L.Ed.2d 847 (1995). Accordingly, the court finds Royale's third ground for relief that the prosecutor withheld exculpatory evidence in violation of the United States and Texas Constitutionsis procedurally barred.
Barrientes involved a capital murder conviction. Collateral review of a death penalty case is governed by the provisions of art. 11.071 TEX. CODE CRIM. PRO. ANN., which includes an "abuse-of-the-writ" provision, i.e. Section 5. Collateral review in a non-capital case is governed by art. 11.07, which also contains an abuse-of-the-writ provision, i.e. Section 4, which is substantially identical. The Fifth Circuit has noted that in his concurring opinion in Ex Parte Davis, former Presiding Judge McCormick, joined by Judges White, Meyers, and Keller, expressed the opinion that "[t]he successive writ provisions of Article 11.071, Section 5(a), for the most part are merely a legislative codification of the judicially created "abuse of the writ' doctrine." Barrientes v. Johnson, 221 F.3d at 758-59 ( quoting Ex parte Davis, 947 S.W.2d at 226 (McCormick, J., concurring)).
With regard to Royale's first ground for relief — that the trial court lacked jurisdiction to sentence him — the court finds the same to be frivolous. Underlying this ground for relief is his contention that because the trial judge made a negative deadly weapon finding following Royale's guilty plea i.e., that Royale "DID NOT" use or exhibit a deadly weapon in the commission of the offense (aggravated robbery) for which he was charged, he was only found guilty of the lesser included offense of robbery. While it is true that the use or exhibition of a deadly weapon is an essential element of the offense of aggravated robbery ( see TEX. PEN. CODE § 29.03(a)(2)), the fact that Royale pled guilty to aggravated robbery — i.e., to wit: ". . . did then and there intentionally and knowingly, while in the course of committing theft and with the intent to obtain and maintain control of property of Martin Elvis Riddle did then and there intentionally and knowingly threaten and place another . . . in fear of imminent bodily injury and death and did then and there use and exhibit a deadly weapon namely a stick or baton . . ." (emphasis added) — militates against the acceptance of Royale's argument. Moreover, assuming that error occurred when the trial court entered an affirmative finding of use of a deadly weapon on the subsequent occasion when the court adjudicated his guilt and sentenced Royale to a forty year term of imprisonment, such an error would be prejudicial only the event that it adversely affected his eligibility for release on parole or to mandatory supervision.
One of Royale's points of error in his direct appeal was that the trial court erred by entering an affirmative deadly weapon finding in the judgment after adjudicating his guilt, after having previously entered a negative deadly weapon finding when adjudication of his guilt was originally deferred. Although the Dallas court of appeals dismissed Royale's appeal for want of jurisdiction, in dictum the court found that the trial court committed harmless error by subsequently entering an affirmative deadly weapon finding. See Royale v. State, No. 05-98-00066-CR, 2000 WL 136788, *2 (Tex. App — Dallas 2000, no pet.) (attached to Respondent's Motion to Dismiss, Ex. A).
Under Texas state law a prisoner's eligibility for parole consideration or for release on mandatory supervision can be retarded when the conviction at issue comes within the purview of certain statutory conditions. A prisoner is not eligible for parole consideration until he has served one-fourth of his sentence, excluding good-conduct credit, or fifteen calendar years, whichever is less, when an affirmative finding of use of a deadly weapon is made. See Tex. Code Crim. Proc. Art. 42.18 § 8(b)(3) (West 1992). Similarly an affirmative finding of use of a deadly weapon forecloses a prisoner's entitlement to mandatory supervision release. Id. at § 8(c). However, even absent an affirmative finding of use of a deadly weapon, there are certain offenses for which parole consideration is retarded and for which there is no right to mandatory supervision release. Specifically, parole consideration is retarded when a defendant has been convicted of an offense under Section 3g(a) of article 42.12 of the Texas Code of Criminal Procedure (West 1992) — which includes the offenses of robbery and aggravated robbery. Release on mandatory supervision is likewise unavailable to a defendant convicted of either robbery or aggravated robbery. Id. at § 8(c)(10), (11). Therefore, even if it was error to include an affirmative finding of use of a deadly weapon in the proceedings on December 17, 1997, such error did not adversely affect Royale's eligibility for release on parole or mandatory supervision.
The statutory provisions in effect in 1994 and 1997 were subsequently repealed, effective September 1, 1997. See Malchi v. Thaler, 21 F.3d 953, 958 (5th Cir. 2000).
With regard to Royale's second ground for relief — that the trial court improperly sentenced him during his initial plea of guilty, as well as at his adjudication of guilt — the court finds that same is equally lacking in merit. Specifically, Royale contends that (1) he could not be given probation for a first degree felony offense — i.e., aggravated robbery, (2) the terms of his probation were fixed at ten years and can not be construed to impose forty years of confinement, and (3) he could not be "legally" sentenced as an habitual offender.
After reviewing each of these contentions, it is clear that Petitioner has completely misconstrued the substantive differences between probation/community supervision and deferred adjudication probation/community supervision. Petitioner's confusion appears to be the result of his trial counsel's failure to consider the distinctions between sections 3 and 5 of article 42.12 of the Texas Code of Criminal Procedure. Counsel asserted that Royale was not eligible to negotiate an agreed plea to aggravated robbery in exchange for court-ordered probation because article 42.12 § 3g(a) prohibits the imposition of probation for various offenses, including aggravated robbery. TEX. CODE CRIM. PROC. ANN. § 3g(a) (West 1994). However, § 5(a) of article 42.12 — the article specifically cited by the court in its order deferring adjudication of Royale' s guilt — allows for the deferral of adjudicating one's guilt in conjunction with the imposition of a term of probation regardless of the charged offense. TEX. CODE. CRIM. PROC. ANN. § 5(a) (West 1994). Therefore, since Petitioner was not given "regular" probation/community supervision but rather deferred adjudication probation/community supervision pursuant to section 5, the trial court was well within its authority to sentence Royale to a term of years higher than that originally bargained for — 10 years probation/community supervision — because his original term applied only to the imposition of deferred adjudication. See Ditto v. State, 988 S.W.2d 236, 238-240 (Tex.Crim.App. 1999) (imposition of a higher sentence is not precluded upon proceeding to adjudication due to a violation of the terms of deferred adjudication probation since the bargain was satisfied and completed by previous assessment of the deferred adjudication probation). Moreover, to the extent that these contentions underlying Royale's second ground for relief relate to matters of state law, the court finds that they fail to present a cognizable federal claim.
See Clerk's Record. Vol. 1 at 22-23 (Motion to Set Aside Defendant's Adjudication of Guilt Because of a Void Plea and to Grant Defendant a New Trial.)
Appl. at 46.
With regard to Royale's fourth ground for relief — that his sentence was improperly enhanced by offenses which were committed outside the ten-year statute of limitations in violation of Texas Rule of Evidence 609(b) — the court finds that this evidentiary rule has no application to sentencing issues and that his ground involves an issue of state law which is not cognizable in a § 2254 petition. It necessarily follows that the failure to make such an objection cannot form the basis of an ineffective assistance of counsel claim. See, infra.
Finally, with regard to Royale's fifth ground for relief — ineffective assistance of counsel when a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984). When considering the reasonableness of counsel's conduct, a court must indulge a strong presumption that it falls within the wide range of reasonable professional competence, or that under the circumstances the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct at 2065; Westley v. Johnson, 83 F.3d 714, 719 (5th Cir. 1996), cert denied, 519 U.S. 1094, 117 S.Ct. 773 (1997).
A court reviewing an ineffectiveness claim need not consider the two prongs of the Strickland test in any particular order, because a failure to establish either one defeats the claim. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Amos v. Scott, 61 F.3d 333, 348 (5th Cir.), cert. denied, 516 U.S. 1005, 116 S.Ct. 557 (1995).
Moreover, pursuant to § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); See also Loyd v. Smith, 899 F.2d 1416, 1424 (5th Cir. 1990) ("[f]ederal courts in habeas proceedings are required to grant a presumption of correctness to a state court's explicit and implicit findings of fact if supported by the record."), cert. denied, 508 U.S. 911, 113 S.Ct. 2343 (1993).
Specifically, Royale contends that his trial counsel was deficient in failing to (1) fully apprise the trial court of stipulations in the plea agreement, (2) object to information contained in the Pre-Sentence Investigation (PSI) Report which was contrary to the stipulations in the plea agreement, (3) object to the misapplication of Texas Rule of Evidence 609(b), and (4) object on double jeopardy grounds.
In addition to the presumption that counsel's performance was adequate, with respect to his first and second contentions, supra, Petitioner fails to offer any evidentiary support for his claims. For example, he has failed to identify what stipulations were made in his plea agreement. Additionally, he has failed to identify any information contained in the PSI Report, let alone information which was contrary to the stipulations in his plea agreement. He merely speculates that had counsel acted accordingly, the result would have been favorable to his defense. Therefore, these contentions fail to raise a cognizable ground for relief Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (citing Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982), cert. denied, 461 U.S. 951, 103 S.Ct. 2419 (1983)).
The only stipulation which the court can glean from the record is that Royale agreed to pled guilty to the offense of aggravated robbery in exchange for the State's recommendation that the trial court defer adjudication of his guilt. This was fully accomplished.
With respect to Royale's third and fourth contentions, the court finds that there was no cognizable basis for such objections. An attorney is not required to assert frivolous and/or futile objections.
The record shows that a vigorous defense was presented by Petitioner's trial counsel. The mere fact that it was unsuccessful does not overcome the strong presumption that the attorney provided constitutionally sufficient representation. See United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989). The findings of the Texas state courts with respect to this ground have not been rebutted by "clear and convincing evidence," nor has Royale shown that the Texas courts' application of the Strickland standard was unreasonable or erroneous. See 28 U.S.C. § 2254(d)(1) and (2); Williams v. Taylor, 529 U.S. 362, 413 120 S.Ct. 1495, 1523 (2000). Accordingly, he is not entitled to relief on his claim that counsel was deficient.
The Texas Court of Criminal Appeals denied Royale's article 11.07 without a written opinion. See Appl. at cover. Accordingly, its denial constituted an adjudication on the merits. Singleton v. Johnson, 178 F.3d 381, 348 (5th Cir. 1999).
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition for writ of habeas corpus should be DENIED.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten (10) day period may bar a de novo determination by the district judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.
VANDUREN v. COCKRELL, (N.D.Tex. 2002)
RODNEY FLYNN VANDUREN, Petitioner-Appellant v. JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL DIVISION, Respondent-Appellee. No. 00-20899 Appeal from the United States District Court For the Southern District of Texas (H-99-1804)
United States Court Of Appeals For The Fifth Circuit
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:[*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. 4754]*
Rodney Flynn Vanduren appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas petition as barred by the one year statute of limitations. Vanduren primarily argues that the statute of limitations should not begin to run until the date on which the mandate was issued in his case. This court granted Vanduren's Certificate of Appealability ("COA") on the issues of (1) whether Vanduren properly presented the mandate issue to the district court, thereby preserving it for appellate review; and (2) whether Vanduren's conviction did not become "final" for purposes of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") until the mandate was issued. Because we conclude that the district court did not commit plain error, we affirm.
I.
On April 26, 1995, Vanduren was convicted of aggravated robbery and sentenced to 42 years' imprisonment. The Texas intermediate Court of Appeals affirmed the trial court's judgment on October 5, 1995. After consideration of Vanduren's pro se brief, the intermediate Court of Appeals again affirmed Vanduren's conviction on October 2, 1997. Vanduren then filed a motion for rehearing, which the Court of Appeals ultimately denied on February 12, 1998. On April 29, 1998, Vanduren filed a petition for discretionary review with the Texas Court of Criminal Appeals, which that court rejected as untimely that same day. Finally, on June 15, 1998, the intermediate Court of Appeals issued its mandate. Vanduren filed his only application for state habeas on December 2, 1998, which the Texas Court of Criminal Appeals denied on February 10, 1999.
On June 7, 1999, Vanduren filed a petition for federal habeas relief, alleging ineffective assistance of counsel and various other claims attacking the validity of his conviction.[1 The AEDPA applies to Vanduren's petition because the petition was filed after the AEDPA's enactment in 1996. See Lindh v. Murphy, 521 U.S. 320, 324-36 (1997).]1 The district court dismissed Vanduren's habeas petition as barred by the AEDPA's one year statute of limitations.[2 28 U.S.C. § 2244(d)(1)-(d)(1)(A) provides that "[t]he limitation period shall run from the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."]2 Ultimately, the district court found that Vanduren s conviction became final for the purposes of the AEDPA on March 14, 1998, when time expired for Vanduren to seek discretionary review of the Texas intermediate Court of Appeals' denial of his motion for rehearing.[3 The district court originally found that Vanduren's conviction became final on November 1, 1997, when time expired for him to seek discretionary review of the Court of Appeals' October 7, 1997, affirmance. Vanduren then filed a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e). The district court granted the motion to the extent that it changed the date the conviction became final to March 14, 1998, 30 days after the date Vanduren's motion for rehearing was denied. The district court noted that this change to the limitations calculation did not affect the outcome of its previous dismissal, as even using the later date, Vanduren's habeas petition was still untimely.]3 Tolling the statute of limitations while his state habeas application was pending, the district court determined that Vanduren's federal petition was untimely because it was filed after May 25, 1999.
Vanduren then applied for a COA in the district court on October 10, 2000, in which he argued to the district court for the first time that the AEDPA's one year statute of limitations did not begin to run until the mandate was issued. The district court rejected his application. Vanduren then filed a COA application in this court, which was granted. This appeal followed.
II.
Vanduren argues that the district court improperly calculated the statute of limitations in his case. Specifically, Vanduren asserts that his conviction was not "final" under the AEDPA, and thus the statute of limitations did not begin to run, until the date on which mandate was issued. Vanduren did not raise this issue, however, until he applied for a COA in the district court. Therefore, we review the district court's judgment at the most for plain error.
Plain error is (1) an error, (2) that is clear or obvious, and (3) that affects the defendant's substantial rights.[4 See Jones v. United States, 527 U.S. 373, 389 (1999); United States v. Williams, 264 F.3d 561, 574 (5th Cir. 2001); United States v. Gonzalez, 250 F.3d 923, 930 n. 10 (5th Cir. 2001).]4 Even if all of these factors are met, however, this court will exercise its discretion to correct the error only if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings."[5 United States v. Olano, 507 U.S. 725, 732 (1993) (internal citations omitted; see also Gonzalez, 250 F.3d at 930 n. 10 (internal citations omitted).]5 In relevant part, the AEDPA provides that "[t]he limitation period shall run from the latest of. the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."[6 28 U.S.C. § 2244(d)(1)-(d)(1)(A).]6 The respondent concedes that a conviction is not "final" for purposes of Texas law until the mandate is issued.[7 See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000)17 However, respondent maintains that this designation is not controlling for purposes of calculating the statute of limitations under the AEDPA. In Caspari v. Bohlen, [8 510 U.S. 383, 390 (1994). 18 the Supreme Court analyzed the finality of a conviction for purposes of determining retroactivity under Teague v. Lane. [ 489 U.S. 288 (1989)19 The Court held that a conviction becomes final "when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied."[10 510 U.S. at 390.]10 Moreover, in Flanagan v. Johnson, this court held that, based on Caspari, a Texas prisoner's conviction became final for AEDPA purposes 90 days after the Texas Court of Criminal Appeals denied his petition for discretionary review, when time expired for him to seek a writ of certiorari from the United States Supreme Court. [11154 F.3d 196, 197 (5th Cir. 1998).]11
In addition, at least one circuit has rejected the position that Vanduren advances here. In Wixom v. Washington, the Ninth Circuit held that a decision terminating review, not the issuance of the mandate, signifies "the conclusion of direct review" that triggers the AEDPA's limitation period.[12264 F.3d 894, 897-98 (9th Crim. 2001).]12 The Ninth Circuit noted that even though Washington state courts consider a conviction to be "final" only upon issuance of the mandate for purposes of state law, the Ninth Circuit was bound by Congress definition of the term in calculating the statute of limitations under the AEDPA.[13 Id. at 898 n. 3.]13 Petitioner cites no authority that supports his proposition that the AEDPA's statute of limitations does not begin to run until mandate is issued.
In light of these authorities, it is far from "obvious" that the issuance of the mandate determines when a conviction becomes final for purposes of 28 U.S.C. § 2244(d)(1)(A), thereby triggering the one year limitations period. Thus, the district court's decision that the limitations period began to run on March 14, 1998, when time expired for Vanduren to seek direct review of his conviction, was not an obvious error, if erroneous at all.
Therefore, we AFFIRM the district court's dismissal of Vanduren's § 2254 petition.