Background

• Mark challenged his Texas aggravated robbery conviction via a 28 U.S.C. § 2254 petition; district court dismissed as time-barred; this court granted a COA to review timeliness; court held petition timely and remanded.
• After ruling, Mark pled guilty to aggravated robbery and was sentenced to 25 years; he appealed but voluntarily dismissed the appeal on Feb. 22, 2005; he did not seek discretionary review (PDR) in the Texas Court of Criminal Appeals (CCA).
• Mark filed a state habeas petition on Feb. 21, 2006, which CCA denied on Apr. 9, 2006; he filed the federal petition on May 4, 2006; AEDPA governs timing and tolling, and state petitions toll while pending.
• AEDPA tolling applies for properly filed state petitions; finality for AEDPA purposes hinges on end of direct review; Texas law allows a PDR within 30 days after an intermediate court’s judgment; voluntary dismissal triggers a 30-day window for PDR.
• Court concluded Mark’s conviction did not become final until 30 days after the Court of Appeals dismissed his appeal (Feb. 22, 2005), because Texas law permitted a PDR within that window; Mark’s state habeas petition tolled the AEDPA clock for 48 days, making the May 4, 2006 federal filing timely.

Issues

Key Cases Cited

• United States v. Plascencia, 537 F.3d 385 (5th Cir. 2008) (conviction final when direct-review period expired, even if timely notice of appeal was filed late)
• Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003) (finality tied to end of direct review under Texas rules and AEDPA)
• Foreman v. Dretke, 383 F.3d 336 (5th Cir. 2004) (timeliness and finality interpretations under AEDPA in Fifth Circuit)
• Jimenez v. Quarterman, 555 U.S. 113 (2009) (finality and reopen-direct-review implications under AEDPA)
• Caspari v. Bohlen, 510 U.S. 383 (1994) (finality of direct-review process under state law before AEDPA timing)