             IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT
                                           _______________

                                             m 01-11204
                                           _______________



                                     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.                       Leonard Rojas filed his first federal petition
                                                      for writ of habeas corpus, which the district
PER CURIAM:*                                          court denied as untimely, rejecting Rojas’s


   *                                                     *
     Pursuant to 5TH CIR. R. 47.5, the court has           (...continued)
determined that this opinion should not be pub-       lished and is not precedent except under the limited
                                    (continued...)    circumstances set forth in 5TH CIR. R. 47.5.4.
argument that the time limit of the Anti-Ter-           (Sept. 6, 2001). The court found that
rorism and Effective Death Penalty Act of               AEDPA’s one-year statute of limitations, cod-
1996 (“AEDPA”), codified at 28 U.S.C.                   ified at 28 U.S.C. § 2244(d), barred Rojas’s
§ 2244(d), violates the Suspension Clause,              claim.
U.S. CONST. art. I, § 9, cl. 2. The district
court also refused to grant a certificate of                                  II.
appealability (“COA”). Agreeing with the                   Where the district court denies relief on
district court, we decline to issue a COA.              procedural grounds, the petitioner must satisfy
                                                        two elements before we will grant a COA. He
                       I.                               must show that “jurists of reason would find it
   Rojas shot and killed his girlfriend and             debatable whether the petitioner states a valid
brother in a jealous rage after a night of drink-       claim of the denial of a constitutional right”
ing and drug use. A jury convicted Rojas of             and “would find it debatable whether the
capital murder and sentenced him to death.              district court was correct in its procedural
On September 23, 1998, the Texas Court of               ruling.”1
Criminal Appeals affirmed the conviction and
sentence in Rojas v. State, 986 S.W.2d 241                 Rojas admits that he filed his first habeas
(Tex. Crim. App. 1998). On November 4,                  petition over a year after his final conviction,
1998, that court denied rehearing. Because              making the petition untimely.2 He argues only
Rojas did not file a petition for writ of certio-       that § 2244(d) violates the Suspension
rari in the United States Supreme Court, his            Clause.3 We twice have held that AEDPA’s
conviction became final ninety days following
the denial of rehearing, on February 2, 1999.              1
                                                              Slack v. McDaniel, 529 U.S. 473, 484 (2000);
                                                        Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir.)
   On June 22, 1998, while his direct appeal
                                                        (addressing questions about the juvenile death pen-
was pending, Rojas filed an application for
                                                        alty and other due process concerns under the two-
writ of habeas corpus in state court. On De-            part test), cert. denied, 533 U.S. 969 (2001); Dwo-
cember 9, 1998, the Court of Criminal Appeals           thitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000)
rejected that writ application in Ex Parte              (reviewing admission of DNA evidence), cert.
Rojas, No. 39,062-01 (Tex. Crim. App. Dec.              denied, 532 U.S. 915 (2001). Because we deny
9, 1999) (unpublished); Ex Parte Rojas, 981             relief on Rojas’s procedural issue, we do not reach
S.W.2d 690 (Tex. Crim. App. 1998) (Baird, J.,           the additional prong of the Slack test, i.e., whether
concurring).                                            he stated a cognizable claim of the denial of a
                                                        constitutional right. See Beazley.
   On April 5, 2000, Rojas applied to the fed-             2
eral district court for appointment of counsel               28 U.S.C. § 2244(d)(1) (“A 1-year period of
to file a federal habeas petition under 28              limitations shall apply to an application for a writ
                                                        of habeas corpus by a person in custody pursuant
U.S.C. § 2254. The court appointed counsel,
                                                        to the judgment of a State court.”).
who, on March 23, 2001, filed a petition. On
September 6, 2001, the court denied the peti-              3
                                                             The Suspension Clause of the federal Consti-
tion with prejudice and refused to issue a              tution provides that “[t]he privilege of the writ of
COA. Rojas v. Cockrell, No 3:00-CV-                     habeas corpus shall not be suspended, unless when
0716-D, 2001 U.S. Dist. LEXIS 13988                     in Cases of Rebellion or Invasion the public Safety
                                                                                              (continued...)

                                                    2
statute of limitations only alters the procedure                 Following Felker v. Turpin, 518 U.S. 651,
for bringing a habeas petition and does not                  663-64 (1996), we have assumed arguendo
unconstitutionally suspend the writ. Molo v.                 that the Suspension Clause refers to the mod-
Johnson, 207 F.3d 773, 775 (5th Cir. 2000);                  ern, twentieth-century writ rather than to the
Turner v. Johnson, 177 F.3d 390, 392 (5th                    writ as it may have existed in 1789. Turner,
Cir. 1999). Every other federal court of ap-                 177 F.3d at 392. We have found that the limi-
peals to address the question has reached the                tation period does not make “the habeas rem-
same conclusion.4                                            edy ‘inadequate or ineffective’ to test the le-
                                                             gality of detention.”5

                                                                Congress and the Supreme Court regulated
   3
   (...continued)
                                                             the procedure and form of the writ throughout
may require it.” U.S. CONST. art. 1, § 9, cl. 2.             the twentieth century.6 For example, before

   4
      Lucidore v. N.Y. State Div. of Parole, 209
F.3d 107, 113 (2d Cir.) (“[B]ecause AEDPA’s                     5
                                                                  Turner, 177 F.3d at 392 (stating that “we
one-year statute of limitations leaves habeas peti-          agree with the reasoning of the Tenth Circuit in
tioners with some reasonable opportunity to have             Miller). See Miller, 141 F.3d at 977 (citations
their claims heard on the merits, the limitations pe-        omitted).
riod does not render the habeas remedy ‘inadequate
                                                                6
or ineffective to test the legality of detention,’ and            The Supreme Court has barred habeas claims
therefore does not per se constitute an unconstitu-          where the petitioner failed to appeal in state courts,
tional suspension . . . .”) (citations omitted), cert.       the petitioner’s successive petitions abused the
denied, 531 U.S. 873 (2000); Weaver v. United                writ, and the petitioner relied on Supreme Court
States, 195 F.3d 123, 125 (2d Cir. 1999) (finding            decisions post-dating the final conviction. Harris
that 28 U.S.C. § 2255’s time limit for federal pri-          v. Reed, 489 U.S. 255, 263 (1989) (“[A] proce-
soners did not violate Suspension Clause even                dural default does not bar consideration of a fed-
though § 2255 does not include tolling provisions);          eral claim on either direct or habeas review unless
Davis v. Bumgarner, 201 F.3d 324 (4th Cir. 1999)             the last state court rendering judgment in a case
(table) (unpublished) (available at 1999 WL                  ‘clearly and expressly’ states that its judgment
1032617) (denying COA because petitioner failed              rests on a state procedural bar.”) (citations omit-
to satisfy § 2254’s constitutional statute of limita-        ted); McClesky v. Zant, 499 U.S. 467, 503 (1991)
tions); Hampton v. M.K. Madding, 232 F.3d 894                (abuse of writ); Stringer v. Black, 503 U.S. 222,
(6th Cir. 2000) (table) (unpublished) (available at          236-37 (1992) (explaining that habeas court need
2000 WL 800724) (rejecting Suspension Clause                 only look to decisional law at time of final convic-
argument because § 2254 gave petitioner a year to            tion).
pursue claims and petitioner provided zero evi-
dence that he diligently pursued those claims), cert.            In the only cases in which the Supreme Court
denied, 531 U.S. 1081 (2001); Miller v. Marr, 141            found that statutes raised Suspension Clause ques-
F.3d 976, 978 (10th Cir. 1998) (emphasizing equit-           tions, the Justices rejected interpretations of the
able tolling and absence of claimed actual inno-             statutes that would have stripped federal courts of
cence or incompetence); Wyzykowski v. Dep’t of               all jurisdiction over a first habeas application. INS
Corrections, 226 F.3d 1213, 1216-17 (11th Cir.               v. St. Cyr, 533 U.S. 289, 298, 300-03 (2001);
2000) (explaining the similarities to abuse of the           Felker, 518 U.S. at 660-61 (noting that “[n]o pro-
writ doctrine, availability of equitable tolling, and        vision of Title I mentions our authority to entertain
open question of actual innocence).                                                                  (continued...)

                                                         3
AEDPA was enacted, the courts could dismiss                 choices about the “proper scope of the writ.”
a pet ition if the state had been “prejudiced in            Turner, 177 F.3d at 392. Because § 2244(d)
its ability to respond to the petition by delay in          does not significantly impede the petitioner
its filing unless the petitioner shows that it is           from bringing a first habeas petition, and Con-
based on grounds of which he could not have                 gress has considerable power to alter the form
had knowledge by the exercise of reasonable                 of the writ, AEDPA’s statute of limitations
diligence before the circumstances prejudicial              does not unconstitutionally render the habeas
to the state occurred.” 28 U.S.C. § 2254 Rule               remedy “inadequate or ineffective.” Given
9(a) (1994 ed.). 7 Similarly, § 2244(d) estab-              binding Supreme Court and Fifth Circuit pre-
lishes a statute of limitations requiring the pe-           cedent, no reasonable jurist would find this
titioner to bring any claim within one year of              point debatable.
final conviction.
                                                               The application for COA is DENIED.
   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


   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
                                                               8
on appeal. 28 U.S.C. § 2244(d)(1)(C). Third, the                 (...continued)
statute tolls the running of limitations for claims         § 2244(d)(1)(D). Fourth, this court, like every oth-
whose factual predicates could not have been dis-           er federal court, has interpreted § 2244 to include
covered by exercising due diligence. 28 U.S.C.              an exception for equitable tolling. Davis v. John-
                                      (continued...)        son, 158 F.3d 806, 811 (5th Cir. 1996).

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