Salinas v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
January 7, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-41721
_______________
GARY J. SALINAS,
Petitioner-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m C-02-CV-214
_________________________
Before SMITH, BARKSDALE, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Gary Salinas’s petition for writ of habeas
corpus was denied as time-barred. Proceeding
pro se, Salinas concedes that his petition was
untimely when it was originally filed but
argues that intervening events have rendered
his petition premature, not late. Specifically,
Salinas reasons that the Texas Court of Crim-
inal Appeals effectively restored him to the dir-
ect review phase of his appeal when it granted
him the right to file an “out-of-time” petition
for discretionary review in that court, and that

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this action requires federal courts to measure
the statute of limitations under the Anti-
Terrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2244, only from the
moment at which the Court of Criminal Ap-
peals subsequently declined to review the mer-
its of his petition. As a result, Salinas avers,
his petition should have been dismissed
without prejudice. Concluding that the relief
granted by the Court of Criminal Appeals had
no effect on AEDPA’s statute of limitations,
we affirm.
I.
Salinas was charged with capital murder
and attempted capital murder. A jury found
him guilty and assessed two life sentences.
The intermediate court of appeals affirmed in
an unpublished opinion on July 20, 2000.
The next logical step in Salinas’s appeal
would have been the filing of a petition for dis-
cretionary review (“PDR”) with the Court of
Criminal Appeals. He had thirty days from
July 20 in which to do so, or forty-five days in
which to request an extension of time. See
TEX. R. APP. P. 68.2(a), (c). This did not hap-
pen, however, because he spent the next seven
months in jail, unaware that his conviction had
been affirmed. His lawyer, Edward Garza, had
prepared a letter notifying him of the result,
but neglected to mail it.
It was not until March 6, 2001SSin re-
sponse to an inquiry from SalinasSSthat Garza
notified him that the appeal had been unsuc-
cessful and that his court-appointed duty to
represent him was now terminated. In re-
sponse to a second letter, Garza told Salinas
that, time restrictions notwithstanding, he did
not think Salinas possessed an issue meriting
discretionary review and that Salinas’s only
remedy was “perhaps” to file a habeas petition.
Playing the cards he was dealt, Salinas filed
a PDR and a motion for extension of time on
April 7, 2001, but the PDR was dismissed as
time barred on April 19, 2001. He filed a state
application for habeas relief, arguing in part
that his appellate counsel had failed to advise
him timely of his right to file a PDR pro se.
Following a remand to determine when Garza
had informed Salinas that his conviction had
been affirmed, the Court of Criminal Appeals
denied Salinas’s application for habeas relief
without written order on March 13, 2002.
Salinas filed a federal habeas petition on
April 28, 2002. The state asked the district
court to dismiss the petition as time-barred.
AEDPA provides that “[a] 1-year period of
limitations shall apply to an application for a
writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.”
See 28 U.S.C. § 2244(d)(1). Under the pres-
ent facts, this period runs from “the date on
which the judgment became final by the con-
clusion of direct review or the expiration of
the time for seeking such review.” See 28
U.S.C. § 2244(d)(1)(A).1
In Texas, a PDR is considered to be part of
the direct review process, which ends when
the petition is denied or when the time avail-
able for filing the petition lapses. Roberts v.
Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).
1 The limitations period runs from the later of
the date on which (1) direct review was concluded
in the state courts; (2) a state created impediment
to filing an application was lifted; (3) a new, and
retroactively applicable, constitutional right was
recognized by the Supreme Court; or (4) the fac-
tual predicate of the claim could have been dis-
covered through the exercise of due diligence. 28
U.S.C. § 2244(d)(1)(A)-(D). Salinas does not ar-
gue that any provision other than the first applies
here.

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Salinas’s appeal was affirmed on July 20,
2000, and he had thirty days from that date to
file a PDR with the Court of Criminal Appeals.
Because August 19, 2000, was a Saturday, he
had until August 21 to file a PDR and until
August 21 of the following year to seek fed-
eral habeas relief. With eighteen days remain-
ing on the federal clock, he filed a state
application for habeas relief, an event that tolls
the federal statute of limitations. See 28
U.S.C. § 2244(d)(2). Thus, when his state
habeas application was denied by the Court of
Criminal Appeals on March 13, 2002, he had
eighteen days to file a federal habeas petition.
The petition was not filed, however, until April
28.
A magistrate judge recommended that the
district court equitably toll limitations, but the
district court disagreed and dismissed Salinas’s
petition on November 18, 2002. On the same
day, and without knowledge of the district
court’s action, Salinas mailed a motion to the
district court informing it of the central fact in
this appeal: Acting on its own motion on
October 30, 2002, the Court of Criminal
Appeals had reconsidered the state habeas
petition and decided to award Salinas the right
to file an “out-of-time” PDR. The effect of
this was to “return [Salinas] to the point at
which he can file a petition for discretionary
review . . . . For purposes of the Texas Rules
of Appellate Procedure, all time limits shall be
calculated as if the Court of Appeals’ decision
had been rendered on the day the mandate of
the Court of Criminal Appeals issues.” Ex
Parte Salinas, No. 74,462, at 2 (Tex. Crim.
App. 2002).
Thus, under state law, Salinas was restored
to the position of a recently convicted felon,
eligible to pursue a form of direct review in the
Court of Criminal Appeals.2 In light of this
development, his letter to the district court
asked that it dismiss his federal habeas appli-
cation, without prejudice, for failure to exhaust
state remedies. When the court received that
letter several days later, it concluded that it
was without jurisdiction to grant the requested
relief, because it had already ruled on the
state’s motion to dismiss the petition as time-
barred.
II.
The question is whether, as a corollary to
the revival of Salinas’s right to file a PDR,
AEDPA’s one-year statute of limitations has
not yet run on his petition. If it has run, we
must also consider whether the district court
abused its discretion in declining equitably to
toll limitations.
A.
The state argues that the issue is before us
pursuant to an improvidently granted certifi-
cate of appealability (“COA”). The district
court dismissed Salinas’s petition as untimely
before it knew of the Court of Criminal Ap-
peals’ decision to grant the “out-of-time”
PDR, and as a result, the state argues, the dis-
trict court did not have an opportunity to con-
sider the issue we decide today. Citing United
States v. Armstrong, 951 F.2d 626, 630 (5th
Cir. 1992), the state contends that the issue
therefore was not preserved for appeal.
We disagree. Salinas’s letter informing the
district court of the action taken by the Court
2 The Court of Criminal Appeals subsequently
rejected Salinas’s PDR, Salinas v. State, PDR No.
2102-02 (Jan. 22, 2003), but this fact has no bear-
ing on the question whether the Court of Criminal
Appeals’ initial grant of the right to file a PDR al-
ters Salinas’s status under AEDPA.

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4
of Criminal Appeals and asking for a dismissal
without prejudice was received within ten days
of the entry of judgment. It is therefore
properly construed as a Federal Rule of Civil
Procedure 59(e) motion to alter or amend the
judgment, and the issue was properly before
the district court.3 As a result, we have juris-
diction to review Salinas’s claims.
B.
We must consider the effect the Court of
Criminal Appeals’ order has on AEDPA’s stat-
ute of limitations, a question of law we review
de novo. Egerton v. Cockrell, 334 F.3d 433,
436 (5th Cir. 2003). When the Court of
Criminal Appeals grants the right to file an
“out-of-time” PDR, it restores the petitioner to
the position he was in when he first possessed
the right to petition for discretionary review.4
A defendant who still has the right to file a
PDR is considered to be in the midst of the di-
rect review process. Roberts, 319 F.3d at 693.
On this basis, Salinas urges that the statute
of limitations could not have lapsed in April
2002, because the prescription period should
have begun only on the conclusion of direct re-
view, see 28 U.S.C. § 2244(d)(1)(A), and di-
rect review once again was pending on No-
vember 18, 2002, when the district court dis-
missed his petition. Thus, Salinas argues, his
conviction was “de-finalized,” and the statute
of limitationsSSthough legitimately initiated in
August 2000SSshould be deemed to have be-
gun again with the rejection of the PDR in
January 2003.
We disagree. On its face, AEDPA provides
for only a linear limitations period, one that
starts and ends on specific dates, with only the
possibility that tolling will expand the period in
between. See § 2244(d)(1), (2). So long as
the petitioner is being held pursuant to the
same state court judgment, nothing in AEDPA
allows for a properly initiated limitations
period to be terminated altogether by collateral
state court action. Rather, the statutory
framework only provides for the tolling of lim-
itations during the pendency of state collateral
review. See § 2244(d)(2).
Thus, the issue is not whether the Court of
Criminal Appeals’ action revitalized Salinas’s
limitations period, but rather whether the ex-
istence of that potential relief prevents the lim-
itations period from starting to run until after
that level of appeal has been denied. That is to
say, we need to determine whether, in Texas,
the mechanism by which Salinas obtained the
right to file an “out-of-time” PDR is part of
the direct or collateral review process. If that
relief comes as a result of direct review, there
would be no basis for limitations even to begin
running until the Court of Criminal Appeals
has finalized the judgment by declining to
grant relief on that level of appeal. If, on the
3 See Harcon Barge Co. v. D&G Boat Rentals,
Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc)
(“[W]e hold that any post-judgment motion to alter
or amend the judgment served within ten days after
the entry of the judgment . . . is within the un-
restricted scope of Rule 59(e) and must, however
designated by the movant, be considered as a Rule
59(e) motion for purposes of Fed. R. App. P.
4(a)(4).”).
4 See Ex Parte Salinas, No. 74,462, at 2 (“The
proper remedy in a case such as this is to return
Applicant to the point at which he can file a peti-
tion for discretionary review.”); see also Ex Parte
Torres, 943 S.W.2d 469, 472 (Tex. Crim. App.
1997) (stating that “granting an out-of- time appeal
restores the pendency of the direct appeal”); Ex
Parte Daigle, 848 S.W.2d 691, 692 (Tex. Crim.
App. 1993) (returning a petitioner “to the point at
which he can give notice of appeal.”).

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5
other hand, an “out-of-time” PDR is awarded
only as a result of the collateral review
process, limitations is tolled merely while the
petitioner seeks to obtain that relief.
After reviewing the relevant state law,5 we
conclude that the Court of Criminal Appeals is
authorized to grant this form of relief only
through state habeas proceedings. As a result,
when a petitioner convicted in the Texas sys-
tem acquires the right to file an “out-of-time”
PDR, the relief tolls AEDPA’s statute of lim-
itations until the date on which the Court of
Criminal Appeals declines to grant further re-
lief, but it does not require a federal court to
restart the running of AEDPA’s limitations pe-
riod altogether.6
Texas caselaw shows that to acquire the
right to file an “out-of-time” PDR, a petitioner
first must file a state habeas petition.7 That
was the mechanism Salinas used and that was
5 The state argues that a statement in Roberts
prevents us from looking at state law to resolve
Salinas’s claims. We disagree. In Roberts, we
were asked to determine whether, for purposes of
§ 2244’s statute of limitations, a state appellate
judgment becomes final on the date on which it is
issued, or the date on which the mandate is re-
leased. Roberts, 319 F.3d at 693. In the course of
holding that the relevant date is the one on which
the judgment is issued, we stated that we could
“find no reason to look to state law to determine
when a state conviction becomes final for the
purposes of § 2244(d)(1)(A).” Id. at 694.
The state’s argument ignores the fact that the
court in Roberts was asked only to determine when
federal law considers an action to have been taken,
not whether a state proceeding is part of the state’s
“direct review” process at all. The issue we
address today is wholly distinct from one in which
we assume, at the outset, that direct review ended
with the occurrence of a specific event, and simply
seeks to ascertain the date on which federal law
considers that event to have occurred.
In contrast, we are asked to look at a category
of appealSSthe “out-of-time” PDRSSand determine
whether it is part of that state’s direct or collateral
processes. That is not a question one can answer
without looking at the state system to ascertain
whether it has been designated as part of direct or
collateral review. State law defines the contours of
the state appellate process, and it is only by looking
at the state system that we can determine whether
Salinas’s right to file an “out-of-time” PDR comes
before, or after, the conclusion of direct review in
state courts.
6 In most cases in which the Court of Criminal
Appeals grants the right to file an “out-of-time”
PDR, the federal statute of limitations will not
lapse until after the Court of Criminal Appeals re-
ceives the petition and decides whether to hear the
case on the merits. This is because the statute of
limitations is tolled during the pendency of the col-
lateral proceedings that the petitioner uses to
request the right to file an “out-of-time” PDR.
Salinas’s case is unusual, because the Court of
Criminal Appeals initially denied his petition for
habeas relief and granted the “out-of-time” PDR
only on its own motion. That action ceased the
tolling of limitations, allowing it to run fully before
the Court of Criminal Appeals granted relief. Had
the Texas court instead left Salinas’s application
pending until the day on which it allowed him to
file the “out-of-time” PDR, limitations would have
remained tolled until January 22, 2003, when the
court declined to exercise further review.
7 See Ashorn v. Texas, 77 S.W.3d 405, 409
(Tex. App.SSHouston [1st Dist.] 2002, pet. ref’d)
(Opinion on motion for reh’g) (“The appropriate
vehicle for seeking an out-of-time appeal from a
final felony conviction is by writ of habeas corpus
pursuant to Article 11.07 of the Texas Code of
Criminal Procedure.”).

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used in every other case that we have found. 8
This conclusion is buttressed by the fact
that the Texas Rules of Appellate Procedure
make no provision for the issuance of an “out-
of-time” PDR. Rule 68.2, Texas Rules of Ap-
pellate Procedure, sets a thirty-day limit for fil-
ing an original PDR. There is a provision for
seeking an extension, but Salinas failed to
comply with its mandate that a motion for ex-
tension be filed within fifteen days of the last
day for filing the petition. See TEX. R. APP. P.
68.2(c). Beyond that, a petitioner has no right
to seek relief directly from the Court of Crim-
inal Appeals; instead, all relief must be re-
quested through collateral proceedings.
Therefore, because Salinas’s right to file the
“out-of-time” PDR is necessarily the product
of state habeas review, it does not arise under
the “direct review” procedures of the Texas
judicial system. Accordingly, the Court of
Criminal Appeals’ granting of Salinas’s writ
does not alter the fact that limitations set forth
in 28 U.S.C. § 2244(d)(1)(A), properly began
to run on August 21, 2000, and fully lapsed on
March 31, 2002.9
III.
In the alternative, Salinas asks for equitable
tolling of limitations. AEDPA’s statute of lim-
itations may be equitably tolled, but only in
“rare and exceptional circumstances.” Davis
v. Johnson, 158 F.3d 806, 811-12 (5th Cir.
1998). “[T]he decision to invoke equitable
tolling is left to the discretion of the district
court, and we review such decisions only for
abuse of discretion.” Cousin v. Lensing, 310
F.3d 843, 847-48 (5th Cir. 2002), cert. denied,
123 S. Ct. 2277 (2003).
In Cousin, id. at 846, we considered wheth-
er it was an abuse of discretion not to toll lim-
itations where a petitioner was harmed by the
actions of an attorney who, after receiving no-
tice that his client’s in forma pauperis motion
had been denied, failed to inform his client for
two years that the five-dollar filing fee needed
to be paid. Cousin argued that the district
court should have equitably tolled AEDPA’s
limitations period, because neither he nor his
new attorneys received notice of the denial of
his motion. Id. at 848. We noted that
“[e]quitable tolling is warranted . . . only in
situations where the plaintiff is actively misled
by the defendant . . . or is prevented in some
extraordinary way from asserting his rights.”
Id. (citations omitted). Following other cir-
cuits, we concluded that “mere attorney error
or neglect is not an extraordinary circumstance
8 See, e.g., Ex Parte Rosales, 2003 WL
22410055, at * 1 (Tex. Crim. App. Oct. 22, 2003)
(granting the right to seek an “out-of-time PDR” by
filing a state habeas petition); Ex Parte Thompson,
2003 WL 22410064, at * 1 (Tex. Crim. App. Oct.
22, 2003) (same); see also Ex Parte Wilson, 956
S.W.2d 25 (Tex. Crim. App. 1997) (setting out the
standard for relief).
9 This analysis is consistent with that of a sister
circuit, even though we reach a different result. In
Orange v. Calbone, 318 F.3d 1167, 1170-71 (10th
Cir. 2003), the court held that the “appeal out of
time” procedure offered by the Oklahoma Court of
Criminal Appeals was part of that state’s direct
(continued...)
9(...continued)
appeal process. If there is any inconsistency be-
tween our decision today and that in Orange, it is
only because of the underlying differences in the
laws of the states over which we preside. The Ok-
lahoma Rules of Appellate Procedure specifically
provide for the possibility of an “appeal out of
time,” and they allow its use in both direct and
collateral proceedings. Id. at 1171. Texas has cre-
ated a different judicial system, one that does not
provide the same right.

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such that equitable tolling is justified.” Id. at
849. In light of Cousin, the district court did
not abuse its discretion when it held that Sali-
nas had failed to show the existence of the sort
of “rare and exceptional” circumstances that
would warrant equitable tolling.
The judgment is AFFIRMED.

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