Burgess, Odell
WR-12,460-11
Tex. App.Jan 27, 2015Background
- Applicant Odell Burgess filed an application for writ of habeas corpus on November 20, 2014 while his direct appeal from conviction was in progress.
- The State moved to dismiss the habeas application as filed while direct review was pending, relying on a Court of Appeals web-posted docket showing a mandate date of December 29, 2014.
- The 180th District Court adopted the State’s proposed findings and recommended dismissal on December 3, 2014, after the State filed its answer on December 2, 2014.
- Burgess filed written objections asking the Court of Criminal Appeals to render the district court’s findings moot, arguing he had no opportunity to respond before the court signed the findings.
- Burgess contends the Court of Appeals’ plenary power had already expired (60 days after the September 30, 2014 judgment) because he filed no motion for rehearing or petition for discretionary review, so the matter was no longer pending when the State relied on the December 29 mandate date.
- Burgess also argues the December 29 mandate date was improper under the Texas Rules of Appellate Procedure and that, under AEDPA and Supreme Court precedent, finality for federal habeas timing is measured from the end of the PDR period, not the mandate date.
Issues
| Issue | Plaintiff's Argument (Burgess) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the habeas application was filed while direct review was pending | The Court of Appeals’ plenary power expired on 60 days after 9/30/2014; no motion for rehearing or PDR was filed, so the case was final before the habeas filing | The State relied on a published mandate date (12/29/2014) showing direct review was still pending when Burgess filed his habeas application | District court adopted State’s recommendation to dismiss; Burgess asks higher court to render those findings moot pending review |
| Validity of the Court of Appeals’ mandate date | The 12/29/2014 mandate date was legally improper under Tex. R. App. P.; mandate should have issued earlier after PDR period expired | State treated the web-posted mandate date as dispositive evidence that review continued | Disputed; district court accepted State exhibit, applicant challenges its correctness |
| Mootness of the district court’s findings | Even if 12/29/2014 were controlling, that date has passed and the question is moot; no reasonable expectation of recurrence and effects eradicated | State argues dismissal is appropriate because filing occurred while review was pending | Applicant requests Court of Criminal Appeals to declare district court findings moot; court action pending |
| Applicability of federal AEDPA timing | Federal finality is measured from expiration of PDR period (30 days), so federal clock starts earlier than mandate | State relied on state appellate timing/mandate to determine pendency | Applicant cites Day v. McDonough principle; no federal ruling in this pleading — issue asserted for relevance to finality |
Key Cases Cited
- Ex parte Brown, 662 S.W.2d 3 (Tex. Crim. App. 1983) (addresses dismissal of habeas while direct appeal pending)
- County of Los Angeles v. Davis, 440 U.S. 625 (1979) (standard for mootness: no reasonable expectation of recurrence and effects eradicated)
- Parents Involved in Community Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (mootness principles and justiciability discussion)
- Day v. McDonough, 547 U.S. 198 (2006) (federal habeas one-year limitation starts when state remedies are exhausted)
- City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) (case can become moot during pendency, including on appeal)