*2 LUTTIG, Before WILLIAMS, and GREGORY, Judges. Circuit by published opinion. Affirmed Judge opinion, LUTTIG wrote the in which Judge joined. WILLIAMS Judge opinion. GREGORY wrote a concurring
OPINION
LUTTIG, Judge: Circuit appeals Petitioner Wade the district court’s of his corpus petition untimely pursu- 2244(d)(1)(A). ant to 28 U.S.C. Wade contends first that section does not apply his the state’s rescindment conduct upon parole revocation, credits because his is not a to a state court because, judgment, and argues, he is in custody pursuant judgment. Alternatively, Wade contends court misapplied section Although misapply the district court did 2244(d)(1), section Wade’s first contention merit, without is still untimely under a correct calculation period. Accordingly, affirm.
I. was convicted and co- burglary possession
caine June and he petition may not be eighty-four sentenced was thereafter forty-five of imprisonment, months of unless brought before this court a Certifi- suspended. January which were Appealability cate of issues. 28 U.S.C. parole. on supervised was released 2253(c). case, Judge Gregory, In this *3 parole by violations guilty He was found judge, a a acting single granted circuit 3, on 1997 Board Virginia the Parole Appealability, providing thus Certificate Wade filed a was revoked. parole and his pe- jurisdiction us with address 12,1998, February on petition state habeas tition. in Ex Post violation challenging, as 53.1-159 of the Vir- Clause, Facto Code, III. re-incarcerated denies
ginia previously parole benefit violators Virgi- The credits.1
accrued conduct A. 30, petition on his June nia court denied first appeal, On contends that sec- Wade 2244(d)(1) not to him at all. apply does filed a habeas On June section, by plain He contends that that under petition in federal district court 28 (1) only petitions language, governs habeas asserting § the same constitu- 2254 U.S.C. persons custody brought by who are in the state tional claim as denied (2) pursuant judgment, to a The district court dismissed court. directly judg- concluding that it was un- which a state court period filed under the limitation timely in ment. And he is not governs habeas pursuant judg- to a custody pursuant judg- custody petition ment and that does chal- 2244(d)(1). ment. See U.S.C. par- lenge a state Peti- judgment. court ticular, judg- court rested its Br. at is “in (arguing tioner’s that Wade 2244(d)(1)(A). It reasoned ment on section custody pursuant to a the Vir- decision (l)’s that under Board,” ginia pursuant Parole 3, began May to run on one-year limitation court); judgment of a state Petitioner’s 1997, day the last Wade could have direct- (“A Reply plain reading Br. ly appealed his revocation. Calcu- makes limitation was tolled lating of state (the date Wade February alone.”). petition), state habeas to June (the petition denied), of Title of the filing period that the court concluded Code, imposes following expired September in ten months limitation on federal habeas claims: petition. filed his federal before Wade 1-year period A of limitation timely appeal. noted an
apply application to an for writ of a II. corpus custody person a in judgment a State jurisdictional matter, preliminary As a appeal court’s court.... of a district a ever, petition petition 1. Wade that he filed his so Wade Decem- claims refiled gave February purposes appeal, ber of this 1998, when he 1999. For mailing. give prison to prison officials for The assume that Wade did officials his original filing, filing mailing February received this how- never clear, Thus, any “person As section 2254 makes defining of a custody pursuant prisoner’s in feature of habeas claim court,” application brings and who presents that it to his custo- corpus, subject for writ dy. “1-year period of limitation.” Court, thereof, a Justice argument, first that he is judge, circuit a district court shall Virgi to an order entertain an for a writ of Board,
nia Parole
not a
behalf
court,
point. Most imme
misses the
custody
to the
himself,
diately
Wade does find
common
State court
on the
only
ground that he is
parlance,
custody by
virtue
in violation
the Constitu-
*4
parole. But
board’s decision to revoke his
tion or laws or treaties
the United
is,
remains, in custody pursu
he
and
still
States.
ant to his 1994 conviction and sentence.
2254(a)
added).
(emphasis
custody pursuant
is in
That
he
2244(d)(1), governing “applica-
Section
judgment
meaning
state court
within the
a
corpus,” applies
tion[s] for writ of habeas
2244(d)(1), even if he
of section
also is
challenging any aspect
to claims
of custo-
custody pursuant
judgment
to
a
dy,
long
as the
is in custody
agency.
state executive
judgment.2
contention,
sec
second
that
next
that
if
even
sec
2244(d)(1) only applies
peti
tion
to habeas
2244(d)(l)’s
compel
text does not
actually challenge
that
state court
tions
(A)
interpretation,
subparagraph
judgments,
plain
also fails. The section’s
section does.
language
every
reaches
and
any
habeas
(1) A 1-year period of limitation shall
by persons
are in
who
custo
apply to an application for a writ of
dy pursuant
judgments.
to state court
corpus by
person
habeas
distinguish
section does not
based
judgment
to the
State
claim,
petitioner’s
the contents of a
but
court. The limitation
run
encompasses all
“application[s]
writ of
from the latest of—
Here, Wade,
corpus.”
(A)
custody pursuant
judg
to
state court
the date
which the
ment, applied
corpus,
for a writ of habeas
final
became
conclusion
direct
section, together
1-year
and the
with its
expiration
review the
the time for
limitation, governs.
review;
seeking such
(B)
impediment
is not alone in not
the date which the
an
distinguishing among
filing
habeas claims
created
State
challenge
and those
action in violation of the Constitution or
aspect
custody.
removed,
challenge another
laws of the
is
if
Examples
(1973)
abound of habeas claims that
93 S.Ct.
by such State 2244(d)(1). 28 U.S.C. court.” See (C) the constitu- initially recog- right asserted tional Court, right if the nized B. recognized by Su- newly has been 2244(d)(1) to applying section retroactively ap- and made
preme Court court conclud petition, the district review; or on collateral to cases plicable (A) it subparagraph governed, ed the factual on which the date the start of the limitation identified present- claim or claims predicate of the Parole Board de through discovered ed could have been argues became final. Wade cision diligence. the exercise of (A) re erred because 28 U.S.C. on which fers the date (A) reading, Because the judgment becomes final. Vir (1), the reach implicitly limits agency, Parole Board is an executive ginia Subpart a self-con- plausible. of its cannot he reasons clear, which, unequivo- provision tained *5 subpar trigger the limitation under 1-year forth a limitation language, cal sets (A). agree with Sub- agraph We Wade. period for all habeas (A), paragraph referencing “the to persons held by the which the became final subparagraph judgment. court Neither expira of review or the conclusion direct (A) any paragraph’s other sub- nor review,” seeking such the time for to plausibly can be understood paragraphs judgment” “the referred plainly references only to limit the reach of this preceding subpart to —that challenge that state court petitions the state court judgment pursuant to which is custody. subparagraphs These mere- is 1-year from which the ly identify argues proper ap that Wade next are period applicable all who limitation 2244(d)(1)(A) compels plication of section pursuant judg- to state court that the date the state court the conclusion They begin to run. do serve ment will petition, which rejected his state habeas persons as to to further limit the class loss challenged good also time cred 1-year applies.3 limitation whom the its, period began. is the date the limitation 2244(d)(1) contains no Because section This date was June limiting reach to restriction day. timely by filing one judgments, claims reject analysis subparagraphs neither ne- can out
and because its We restriction, hand, having subpara imply such a established that cessitate nor even (A) graph that references the conclude petition- for a writ which the “applies] [Wade’s] Indeed, (A), (B), (D) preme subparagraphs and set Court articulates a new rule consti- calculating peri- retroactively ap- forth criteria for law and that rule is tutional applicable to ods are claims that as brought plicable, on that rule judgments as do not (C), that do. And claims wrongly decided. fact, only governs the When the Su- former. (A) 2244(d)(1)(D), custody.4 Subparagraph er is in must the date Wade’s revo- reference the date Wade’s 1994 conviction cation final. became The court correctly date, course, became final.5 one-year limitation, This is not reasoned that the hav- necessarily period ing begun the date the limitation May to run on expired began. provides petition, and, before Wade filed his there- fore, “the limitation ultimately run proper. dates, latest four different defined of” (D). (B), (C), subparagraphs and Nei- CONCLUSION party suggests ther subpara- either The of the district court is (B) (C) graph implicates applicable thus affirmed. therefore, question, only date. The AFFIRMED. applicable subpar- whether the date under agraph than later GREGORY, Judge, concurring: Circuit (A). under (D), Subparagraph by referencing the I. predicate the factual majority’s concur with the conclusion Wade’s claim have could been discovered the merits that to 28 U.S.C. through diligence, the exercise ref- 2244(d)(1)(D), for writ of erences the date that Wade’s revo- must be un- dismissed as date, cation became final. On that timely. however, majority suggests, conduct credits were rescinded my absent vote it would not have operation law, that date Wade granted a Appealability Certificate of through could have public discovered *6 (“COA”) to procedural consider this issue. sources that such had occurred. This date ante, that, (commenting “Judge apparently came than yield- later the date Gregory, acting single as a circuit judge, (A), ed operation the granted of Appealability, Certificate thus the court rendered providing jurisdiction us with to address final judgment as to convic- petition”). Accordingly, I write tion, governs here. separately explain my grant decision to Thus, the district applying court erred in COA this matter. 2244(d)(1)(A) petition. to Wade’s It should have instead applied section
2244(d)(1)(D). II.
However, although the district court recently has ex- erred, plained its ultimate was correct. that while “the issuance of a COA limitations, It calculated the statute of not be pro must or a matter forma though ostensibly under subparagraph course,” do not require “[w]e COA, the prove, under section to the before issuance of a Judgments collateral appealed ac- 5. Had Wade revocation tions do not courts, establish For that rea- have, the as he could then son, although a state court denies habeas re- arguably that decision would constitute a conviction, lief on a collateral he which federal courts do not look to though, was in as well. As it he state court’s denial of habeas as relief the date appeal did not revocation custody judgment becomes fi- state courts. nal, but, rather, to the date the conviction is affirmed on direct review. evidence,” petition grant documentary witnesses and jurists would
that some
well as “the
confront and cross-
right to
corpus” on the merits. Miller-
for habeas
—
(unless
adverse
Cockrell,
-,
examine
witnesses
123 S.Ct.
El
(2003).
specifically
finds
1029, 1040,
“In-
officer
L.Ed.2d 931
”
confrontation)....
deed,
allowing
cause for not
be
even
a claim can
debatable
Brewer,
Morrissey v.
408 U.S.
jurist
might agree,
though every
reason
(1972).
33 L.Ed.2d
488-89
granted
been
and the
S.Ct.
after the COA has
consideration,
documentary
con-
Because
evidence
full
case has received
suggests
tained in the record
these
prevail.”
will not
Id.
might
respected,
not have been
rights
petition
denied in
Carroll E. Wade’s
successfully
the first
Wade has
cleared
procedural grounds.
court on
the district
hurdle
toward
issuance
COA.
Therefore,
appellate
obtain
review
Wade first must
the denial of
B.
find it
jurists
“that
of reason would
show
states a
Having
alleging
debatable whether
stated a claim
the denial
valid claim the denial of
constitutional
must
right,
a constitutional
now
”
McDaniel,
jurists
529 U.S.
“that
right....
Slack
establish
of reason would find
120 S.Ct.
L.Ed.2d 542 it debatable whether the district court was
(2000). Secondly,
Slack,
he must demonstrate
procedural ruling.”
correct in its
it
jurists
“that
of reason would find
debat-
pro-
“reasonable
...
been resolved
should have
manner...Slack,
a different
(quoting
U.S. at
S.Ct.
Estelle,
n.
Barefoot
(1983))
ond prong Accordingly, Slack there
can be no doubt that a COA must issue.
Raymond Dayle ROWSEY,
Petitioner-Appellant, LEE, Warden, Prison, R.C. Central
Raleigh, Carolina, North
Respondent-Appellee.
No. 02-16. Appeals, Fourth Circuit. Argued: Jan. Decided: