Rojas v. Cockrell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-11204
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LEONARD URESTI ROJAS,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
3:00-CV-716
_________________________
June 7, 2002
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Leonard Rojas filed his first federal petition
for writ of habeas corpus, which the district
court denied as untimely, rejecting Rojas’s
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
(continued...)
*(...continued)
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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argument that the time limit of the Anti-Ter-
rorism and Effective Death Penalty Act of
1996 (“AEDPA”), codified at 28 U.S.C.
§ 2244(d), violates the Suspension Clause,
U.S. CONST. art. I, § 9, cl. 2. The district
court also refused to grant a certificate of
appealability (“COA”). Agreeing with the
district court, we decline to issue a COA.
I.
Rojas shot and killed his girlfriend and
brother in a jealous rage after a night of drink-
ing and drug use. A jury convicted Rojas of
capital murder and sentenced him to death.
On September 23, 1998, the Texas Court of
Criminal Appeals affirmed the conviction and
sentence in Rojas v. State, 986 S.W.2d 241
(Tex. Crim. App. 1998). On November 4,
1998, that court denied rehearing. Because
Rojas did not file a petition for writ of certio-
rari in the United States Supreme Court, his
conviction became final ninety days following
the denial of rehearing, on February 2, 1999.
On June 22, 1998, while his direct appeal
was pending, Rojas filed an application for
writ of habeas corpus in state court. On De-
cember 9, 1998, the Court of Criminal Appeals
rejected that writ application in Ex Parte
Rojas, No. 39,062-01 (Tex. Crim. App. Dec.
9, 1999) (unpublished); Ex Parte Rojas, 981
S.W.2d 690 (Tex. Crim. App. 1998) (Baird, J.,
concurring).
On April 5, 2000, Rojas applied to the fed-
eral district court for appointment of counsel
to file a federal habeas petition under 28
U.S.C. § 2254. The court appointed counsel,
who, on March 23, 2001, filed a petition. On
September 6, 2001, the court denied the peti-
tion with prejudice and refused to issue a
COA. Rojas v. Cockrell, No 3:00-CV-
0716-D, 2001 U.S. Dist. LEXIS 13988
(Sept. 6, 2001). The court found that
AEDPA’s one-year statute of limitations, cod-
ified at 28 U.S.C. § 2244(d), barred Rojas’s
claim.
II.
Where the district court denies relief on
procedural grounds, the petitioner must satisfy
two elements before we will grant a COA. He
must show that “jurists of reason would find it
debatable whether the petitioner states a valid
claim of the denial of a constitutional right”
and “would find it debatable whether the
district court was correct in its procedural
ruling.”1
Rojas admits that he filed his first habeas
petition over a year after his final conviction,
making the petition untimely.2 He argues only
that § 2244(d) violates the Suspension
Clause.3 We twice have held that AEDPA’s
1 Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir.)
(addressing questions about the juvenile death pen-
alty and other due process concerns under the two-
part test), cert. denied, 533 U.S. 969 (2001); Dwo-
thitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000)
(reviewing admission of DNA evidence), cert.
denied, 532 U.S. 915 (2001). Because we deny
relief on Rojas’s procedural issue, we do not reach
the additional prong of the Slack test, i.e., whether
he stated a cognizable claim of the denial of a
constitutional right. See Beazley.
2 28 U.S.C. § 2244(d)(1) (“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.”).
3 The Suspension Clause of the federal Consti-
tution provides that “[t]he privilege of the writ of
habeas corpus shall not be suspended, unless when
in Cases of Rebellion or Invasion the public Safety
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statute of limitations only alters the procedure
for bringing a habeas petition and does not
unconstitutionally suspend the writ. Molo v.
Johnson, 207 F.3d 773, 775 (5th Cir. 2000);
Turner v. Johnson, 177 F.3d 390, 392 (5th
Cir. 1999). Every other federal court of ap-
peals to address the question has reached the
same conclusion.4
Following Felker v. Turpin, 518 U.S. 651,
663-64 (1996), we have assumed arguendo
that the Suspension Clause refers to the mod-
ern, twentieth-century writ rather than to the
writ as it may have existed in 1789. Turner,
177 F.3d at 392. We have found that the limi-
tation period does not make “the habeas rem-
edy ‘inadequate or ineffective’ to test the le-
gality of detention.”5
Congress and the Supreme Court regulated
the procedure and form of the writ throughout
the twentieth century.6 For example, before
3(...continued)
may require it.” U.S. CONST. art. 1, § 9, cl. 2.
4 Lucidore v. N.Y. State Div. of Parole, 209
F.3d 107, 113 (2d Cir.) (“[B]ecause AEDPA’s
one-year statute of limitations leaves habeas peti-
tioners with some reasonable opportunity to have
their claims heard on the merits, the limitations pe-
riod does not render the habeas remedy ‘inadequate
or ineffective to test the legality of detention,’ and
therefore does not per se constitute an unconstitu-
tional suspension . . . .”) (citations omitted), cert.
denied, 531 U.S. 873 (2000); Weaver v. United
States, 195 F.3d 123, 125 (2d Cir. 1999) (finding
that 28 U.S.C. § 2255’s time limit for federal pri-
soners did not violate Suspension Clause even
though § 2255 does not include tolling provisions);
Davis v. Bumgarner, 201 F.3d 324 (4th Cir. 1999)
(table) (unpublished) (available at 1999 WL
1032617) (denying COA because petitioner failed
to satisfy § 2254’s constitutional statute of limita-
tions); Hampton v. M.K. Madding, 232 F.3d 894
(6th Cir. 2000) (table) (unpublished) (available at
2000 WL 800724) (rejecting Suspension Clause
argument because § 2254 gave petitioner a year to
pursue claims and petitioner provided zero evi-
dence that he diligently pursued those claims), cert.
denied, 531 U.S. 1081 (2001); Miller v. Marr, 141
F.3d 976, 978 (10th Cir. 1998) (emphasizing equit-
able tolling and absence of claimed actual inno-
cence or incompetence); Wyzykowski v. Dep’t of
Corrections, 226 F.3d 1213, 1216-17 (11th Cir.
2000) (explaining the similarities to abuse of the
writ doctrine, availability of equitable tolling, and
open question of actual innocence).
5 Turner, 177 F.3d at 392 (stating that “we
agree with the reasoning of the Tenth Circuit in
Miller). See Miller, 141 F.3d at 977 (citations
omitted).
6 The Supreme Court has barred habeas claims
where the petitioner failed to appeal in state courts,
the petitioner’s successive petitions abused the
writ, and the petitioner relied on Supreme Court
decisions post-dating the final conviction. Harris
v. Reed, 489 U.S. 255, 263 (1989) (“[A] proce-
dural default does not bar consideration of a fed-
eral claim on either direct or habeas review unless
the last state court rendering judgment in a case
‘clearly and expressly’ states that its judgment
rests on a state procedural bar.”) (citations omit-
ted); McClesky v. Zant, 499 U.S. 467, 503 (1991)
(abuse of writ); Stringer v. Black, 503 U.S. 222,
236-37 (1992) (explaining that habeas court need
only look to decisional law at time of final convic-
tion).
In the only cases in which the Supreme Court
found that statutes raised Suspension Clause ques-
tions, the Justices rejected interpretations of the
statutes that would have stripped federal courts of
all jurisdiction over a first habeas application. INS
v. St. Cyr, 533 U.S. 289, 298, 300-03 (2001);
Felker, 518 U.S. at 660-61 (noting that “[n]o pro-
vision of Title I mentions our authority to entertain
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AEDPA was enacted, the courts could dismiss
a pet ition if the state had been “prejudiced in
its ability to respond to the petition by delay in
its filing unless the petitioner shows that it is
based on grounds of which he could not have
had knowledge by the exercise of reasonable
diligence before the circumstances prejudicial
to the state occurred.” 28 U.S.C. § 2254 Rule
9(a) (1994 ed.).7 Similarly, § 2244(d) estab-
lishes a statute of limitations requiring the pe-
titioner to bring any claim within one year of
final conviction.
Replacing rule 9(a)’s standard for dismissal
with a bright-line rule does not obviously im-
pede prisoners’ rights to bring habeas applica-
tions.8 We owe deference to Congress’s
choices about the “proper scope of the writ.”
Turner, 177 F.3d at 392. Because § 2244(d)
does not significantly impede the petitioner
from bringing a first habeas petition, and Con-
gress has considerable power to alter the form
of the writ, AEDPA’s statute of limitations
does not unconstitutionally render the habeas
remedy “inadequate or ineffective.” Given
binding Supreme Court and Fifth Circuit pre-
cedent, no reasonable jurist would find this
point debatable.
The application for COA is DENIED.
6(...continued)
original habeas petitions,” and that the statute
“makes no mention of our authority to hear habeas
petitions filed as original matters in this Court.”);
Ex parte Yerger, 8 Wall. 85, 102 (1869) (“We are
not at liberty to except from [habeas corpus juris-
diction] any cases not plainly excepted by law.”).
7 Before AEDPA was enacted, the Supreme
Court held that rule 9(a) and the habeas statutes
laid out the proper and exclusive criteria for dis-
missing untimely applications. Lonchar, 517 U.S.
at 322-23.
8 Many statutory and judicial qualifications
soften the harshness of AEDPA’s time limit. First,
§ 2244 tolls the time limit for the period of time
that unconstitutional state action prevents the peti-
tioner from filing an application. 28 U.S.C.
§ 2244(d)(1)(B). Second, limitations run only
from when the Supreme Court establishes a new
constitutional right and makes the right retroactive
on appeal. 28 U.S.C. § 2244(d)(1)(C). Third, the
statute tolls the running of limitations for claims
whose factual predicates could not have been dis-
covered by exercising due diligence. 28 U.S.C.
(continued...)
8(...continued)
§ 2244(d)(1)(D). Fourth, this court, like every oth-
er federal court, has interpreted § 2244 to include
an exception for equitable tolling. Davis v. John-
son, 158 F.3d 806, 811 (5th Cir. 1996).

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