Jenkins v. Cockrell

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41312
Summary Calendar
DAVID LANCELOT JENKINS, JR.,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CV-748
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November 6, 2002
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
David Lancelot Jenkins, Jr., TDCJ-ID # 793786, appeals the
dismissal of his 28 U.S.C. § 2254 application as time-barred.
The district court granted a certificate of appealability (“COA”)
on the issue whether “the date of issuance of the mandate from
the state appellate courts controls the date upon which a habeas
petitioner’s conviction becomes final for purposes of 28 U.S.C.
§ 2244(d).”

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No. 01-41312
-2-
It is not necessary to decide in this case whether the date
of the issuance of the mandate controls the running of the
limitations period. Assuming, arguendo, that Jenkins’ one-year
period began from September 21, 1999, the date of the issuance of
the mandate, his federal petition would be untimely. Jenkins
would not get the benefit of the ninety-day period for seeking
certiorari from the Supreme Court, because he did not file a
petition for discretionary review, and the Supreme Court does not
take into account the mandate date. See SUP. CT. R. 13.1, 13.3.
Under this assumption, Jenkins had until September 21, 2000, to
file his federal petition. His state application was filed
September 26, 2000, after the limitations period had expired.
Because the state petition did not toll the running of the
limitations, his December 16, 2000, submission was untimely.
AFFIRMED.

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