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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                      No. 15-50943
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 12, 2018
CHARLTON BRADSHAW,                                                         Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner - Appellant
v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CV-619


Before KING, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Charlton Bradshaw, a Texas prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition under the Antiterrorism and Effective
Death Penalty Act of 1996. We granted a certificate of appealability on the
procedural issue of whether the § 2254 petition was timely in light of
Bradshaw’s efforts to obtain rehearing of his petition for discretionary review


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-50943
in state court. Bradshaw allegedly filed a timely motion for rehearing within
15 days of the denial of his petition for discretionary review of his state court
conviction pursuant to Texas Rule of Appellate Procedure 79.1. Upon learning
that the Texas Court of Criminal Appeals never received the motion, he filed
another motion for rehearing outside of the 15-day period in which he asserted
that the first motion was timely under the prison mailbox rule and attached
documentary evidence of the mailing of his prior motion. The Texas Court of
Criminal Appeals then denied Bradshaw’s motion for rehearing as “untimely,”
though it did not explain why the prison mailbox rule did not apply. The issue
here is whether the prison mailbox rule applies as to render his motion for
rehearing timely and therefore properly filed. If so, then his § 2254 petition is
timely. As the determination of whether his motion for rehearing was properly
filed is a matter of state procedural law, we defer to the Texas Court of
Criminal Appeals’s conclusion of untimeliness and implicit refusal to apply the
prison mailbox rule. Accordingly, we now AFFIRM.
                                       I.
      On March 1, 2011, Charlton Bradshaw was convicted of capital murder
and sentenced to life in prison. A couple of months later, the judgment was
affirmed on direct appeal. See Bradshaw v. State, No. 04-11-00173-CR, 2012
WL 1648218, at *1 (Tex. App.—San Antonio May 9, 2012, pet. denied) (mem
op., not designated for publication). The Texas Court of Criminal Appeals
(“TCCA”) denied Bradshaw’s petition for discretionary review (“PDR”) on
October 3, 2012. Bradshaw alleges that he filed a timely motion for rehearing
on October 15, 2012. About a month after Bradshaw purportedly mailed the
motion for rehearing, he sent a letter inquiring about the receipt of the motion.
The TCCA responded, stating that they had not received the motion.
      On February 1, 2013, Bradshaw filed a motion with the TCCA that
sought permission to resubmit his original motion for rehearing, invoking the
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                                  No. 15-50943
prison mailbox rule (“second motion for rehearing”). Along with this motion, he
sent a document that shows he mailed something to the TCCA on October 15,
2012, though he did not attach a copy of the original motion. Ten days later,
the TCCA determined that his motion for rehearing was “untimely” and stated
that “[n]o action will be taken in this matter.”
      Bradshaw then filed his first state habeas petition on September 17,
2013. The TCCA dismissed the petition as noncompliant with Texas Rule of
Appellate Procedure 73.1. He then filed a second state habeas petition on
February 21, 2014. The TCCA denied the petition without written order on
June 18, 2014. Bradshaw filed the instant § 2254 petition on July 2, 2014. The
State moved to dismiss the petition as untimely. The magistrate judge
recommended granting this motion. The district court overruled Bradshaw’s
objections, adopted the magistrate judge’s recommendation, and dismissed the
petition as untimely. Bradshaw appealed.
                                       II.
      We review de novo a district court’s dismissal of a habeas petition as
time-barred. Richards v. Thaler, 710 F.3d 573, 575 (5th Cir. 2013). The
Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-
year period of limitation for state prisoners to file for federal habeas relief.
28 U.S.C. § 2244(d)(1). This period begins to run from the latest of four
specified dates set forth in § 2244(d)(1). The first of these dates is relevant to
this case: “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.” Id.
§ 2244(d)(1)(A). When, as here, a petitioner neither stops the appeal process
before the entry of judgment by the state court of last resort nor pursues direct
review with the Supreme Court, the one-year period starts to run from “the
expiration of the time for seeking [direct] review.” Id.; see Roberts v. Cockrell,
319 F.3d 690, 694 (5th Cir. 2003).
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                                  No. 15-50943
      Specifically, the expiration of that time occurs at the conclusion of the 90
days that a party has to file for certiorari with the clerk of the Supreme Court.
See Sup. Ct. R. 13.1; Roberts, 319 F.3d at 694. Those 90 days are calculated
from (1) the date of the judgment entered by a state court of last resort, after
denial of discretionary review, or (2) if a timely petition for rehearing is filed
or an untimely petition for rehearing is entertained, either the date of the
denial of rehearing or the subsequent entry of judgment if rehearing is granted.
See Sup. Ct. R. 13.1, 13.3; England v. Quarterman, 242 F. App’x 155, 157–58
(5th Cir. 2007).
      The date the judgment became final is at issue here. The State argues
that Bradshaw’s motion for rehearing was untimely and so the judgment
became final 90 days after the date that the TCCA denied the PDR, which was
October 3, 2012. According to the State, the one-year period started to run from
the date the judgment became final and ended before Bradshaw filed his § 2254
petition. Additionally, the State contends that neither of the two state habeas
applications tolled the one-year period because the first was improperly filed
and the second was properly filed but outside of the one-year period. In
contrast, Bradshaw asserts that his first motion for rehearing of his PDR was
timely under the prison mailbox rule and therefore the judgment became final
90 days after the date of the denial of his second motion for rehearing, which
was February 11, 2013. He concedes that his first state habeas application did
not toll the one-year period, but states that the second did because it was
properly filed within that period.
      “Although federal, not state, law determines when a judgment is final
for federal habeas purposes, a necessary part of the finality inquiry is
determining whether the petitioner is still able to seek further direct review.”
Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008). “As a result, this court looks
to state law in determining how long a prisoner has to file a direct appeal.” Id.
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                                  No. 15-50943
Pursuant to Texas Rule of Appellate Procedure 79.1, a party must file a motion
for rehearing within 15 days from the denial of the PDR. Bradshaw’s first
motion for rehearing—which the TCCA never received—was purportedly filed
within this period, but his second motion was not. The district court failed to
accurately address Bradshaw’s contention that his § 2254 petition was timely
because he filed a timely motion for a rehearing of his PDR. We thus granted
a certificate of appealability on the procedural issue of whether the § 2254
petition was timely in light of Bradshaw’s efforts to obtain a rehearing of his
PDR.
       Bradshaw argues that he filed a timely motion for rehearing of his PDR
because the prison mailbox rule applies to his first motion. “[T]he ultimate
question is whether [the prisoner’s] state petition complied with [the TCCA’s]
procedural requirements.” Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009) (per
curiam). “[S]tate courts have the right to interpret state rules of filing.”
Richards, 710 F.3d at 577 (quoting Causey v. Cain, 450 F.3d 601, 605 (5th Cir.
2006)). As such, we “are not bound” by Houston v. Lack’s “construction of
federal filing rules.” Causey, 450 F.3d at 605. In Houston, the Supreme Court
concluded that a pro se prisoner’s notice of appeal under Federal Rule of
Appellate Procedure 4(a)(1)—which was mailed before, but officially filed by
the court clerk after, the 30-day deadline—was deemed filed on the date it was
delivered to prison officials for mailing. See 487 U.S. 266, 269, 276 (1988). We
have recognized that in Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim.
App. 2010), the TCCA found Houston’s reasoning persuasive and held that the
prison mailbox rule generally applies in criminal proceedings. See Richards,
710 F.3d at 577. Campbell, like Houston, involved a scenario in which the
prisoner mailed a pleading before, but the court clerk did not officially file the
pleading until after, the relevant deadline. See 320 S.W.3d at 340. The TCCA


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                                       No. 15-50943
has never expressly addressed the issue of whether the prison mailbox rule
applies when the document is never received by the court, as here.
       Yet, today we do not need to engage in a lengthy examination of Texas
law in order to make an Erie guess of what Texas courts would do in this lost-
mail scenario. In the case at hand, Bradshaw presented the prison mailbox
rule argument to the TCCA as the reason that his first motion for rehearing
was timely, along with documentary evidence showing that he had sent mail
to the TCCA on the date that he purportedly sent that motion in (though he
did not attach a copy of the original motion). See Stoot, 570 F.3d at 672
(“[R]eference to prison mail logs usually answers the question of when the
petition was actually mailed.”). Despite Bradshaw’s actions, the TCCA made a
determination that his motion for rehearing was “untimely.” It therefore
implicitly rejected Bradshaw’s timeliness argument based on the prison
mailbox rule. 1 As the question of “when a state application is properly filed is
a question of state law,” Richards, 710 F.3d at 577, we defer to the TCCA’s
implicit refusal to apply the prison mailbox rule to this lost-mail scenario.
       As the TCCA determined that the motion was improperly filed, the
judgment became final 90 days after the TCCA denied the PDR. Accordingly,
Bradshaw’s § 2254 petition was filed outside of the one-year period of
limitation. Further, his second motion for rehearing was also filed outside of
this period and thus could not toll it. See Wion v. Quarterman, 567 F.3d 146,




       1 The TCCA did not set forth the grounds upon which it based its untimeliness
determination. The potential grounds are (1) Bradshaw was not reasonably diligent in
following up on his first motion, (2) his documentary proof was insufficient, and (3) the prison
mailbox rule simply did not apply to this lost-mail situation. The first two are unlikely as
Bradshaw repeatedly followed up on the first motion for rehearing and filed a second motion,
as well as submitted evidence that mail was sent on the date that he allegedly sent in his
first motion. Accordingly, the most likely reason for the TCCA’s decision was that the prison
mailbox rule did not apply to this lost-mail scenario.
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                                  No. 15-50943
148 (5th Cir. 2009) (stating that a state habeas application filed after the one-
year limitation period has no tolling effect).
      Stoot is distinguishable. In Stoot, the Louisiana prisoner allegedly
mailed, but the Supreme Court of Louisiana (“SCLA”) never received, a
petition for discretionary review of the denial of state post-conviction relief.
570 F.3d at 671. When the prisoner learned that the SCLA did not receive his
first petition, he sent another one after the deadline for appeal had passed. Id.
The SCLA denied his petition in a one-word opinion. Id. at 670. We held, absent
Louisiana Supreme Court caselaw directly on point, that a pleading
purportedly mailed, yet never received, may benefit from the prison mailbox
rule. Id. at 671. In prior caselaw, we have construed a one-word opinion from
the SCLA to mean that the SCLA found the petitioner’s application for review
to be untimely. See, e.g., Butler, 533 F.3d at 318–19. Even assuming arguendo
that the SCLA’s one-word opinion in Stoot indicates that the SCLA found the
prisoner’s petition to be untimely, Stoot can be distinguished from the case at
hand. Our opinion in Stoot did not indicate that the prisoner there ever directly
raised his mailbox-rule argument to the SCLA concerning the timeliness of his
first petition. There was no indication in Stoot that the SCLA had an
opportunity to confront whether the prison mailbox rule applied to that lost
petition, as the TCCA had here.
      We recognize that other circuits have held—in cases that concern either
federal procedural law or the procedural law of other states—that the prison
mailbox rule applies when the relevant court never received the filing. See, e.g.,
United States v. McNeill, 523 F. App’x 979, 982 (4th Cir. 2013) (federal law);
Ray v. Clements, 700 F.3d 993, 1004 (7th Cir. 2012) (Wisconsin law); Allen v.
Culliver, 471 F.3d 1196, 1198 (11th Cir. 2006) (per curiam) (federal law);
Huizar v. Carey, 273 F.3d 1220, 1222–23 (9th Cir. 2001) (California law).


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                                 No. 15-50943
      We emphasize that our holding is made in reference to the TCCA’s
decision regarding Texas procedural law in this particular case. The TCCA has
applied the prison mailbox rule where the pleading arrives to the court in a
delayed fashion, but not where the pleading never arrives. See Campbell, 320
S.W.3d at 340, 344. Here, the petitioner sought the application of the rule to
his never-received pleading, and the TCCA chose not to apply the rule. Our
holding is narrow and limited to the facts at hand. We are not imposing an
additional requirement on the prison mailbox rule. We are simply choosing not
to extend the benefits of the rule where the TCCA had the opportunity to do so
and did not. Should the TCCA expressly extend the prison mailbox rule to a
lost-mail scenario in the future, or the record show that the TCCA never had
the mailbox-rule argument presented to it, we would confront that scenario
then and may reach a different result than the one today. See Richards, 710
F.3d at 577–78 (recognizing a change in Texas law applying the prison mailbox
rule and the abrogation of a prior case of this circuit applying the old law, and
then applying the new Texas law).
                                      III.
      For the foregoing reasons, Bradshaw’s motion for rehearing was
untimely, and therefore his federal habeas petition was untimely. Accordingly,
we AFFIRM the judgment of the district court.




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                                  No. 15-50943
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      Charlton Bradshaw has offered sufficient evidence that he timely filed a
motion for rehearing of his petition for discretionary review (PDR) in Texas
state court and, thus, that his federal habeas petition under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) was timely. Because I would
vacate the district court’s dismissal of Bradshaw’s 28 U.S.C. § 2254 petition
and remand, I respectfully dissent.
      Bradshaw’s PDR was denied by the Texas Court of Criminal Appeals
(TCCA) on October 3, 2012. Bradshaw asserts that he timely filed a motion for
a rehearing of his PDR in state court and that the filing tolled the one-year
limitations period for filing his federal habeas application under AEDPA. See
28 U.S.C. § 2244(d)(1), (2). The state court apparently never received or filed
Bradshaw’s motion.      But, Bradshaw has offered documentary evidence
showing that he timely mailed the motion to the TCCA from the prison
mailroom on “10-15-12.” Further, Bradshaw repeatedly followed up on the
motion he said he mailed and then filed a second motion after he found out the
first one was not filed. The second motion was denied as untimely on February
11, 2013. The timeliness of Bradshaw’s attempt to obtain a PDR rehearing
determines when his conviction became final and when the limitations period
began to run.
      The district court did not decide whether the missing rehearing motion
was timely, but acknowledged that a timely motion for rehearing would have
delayed the finality of Bradshaw’s conviction. However, as we said in granting
a Certificate of Appealability (COA), the court’s analysis did not properly
account for the effect of the delayed finality combined with the tolling effect of




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                                    No. 15-50943
Bradshaw’s second state habeas petition, which was filed within a year of
finality. 1
       Under the prison mailbox rule, a pro se petitioner's pleading “is deemed
filed at the moment it is delivered to prison authorities” for mailing. Causey
v. Cain, 450 F.3d 601 (5th Cir. 2006). The majority affirms the district court’s
dismissal of Bradshaw’s 28 U.S.C. § 2254 petition, saying it defers to the
TCCA’s “implicit refusal to apply the prison mailbox rule.” I disagree with this
conclusion.
       The state court docket reflects that, after Bradshaw made multiple
status inquiries and requests for assistance regarding his original motion for
rehearing that were “refused” by the court, an “untimely” motion for rehearing
was received on February 11, 2013. The disposition of that second motion
states only, “Untimely Filed,” and includes nothing to suggest that the court
considered and rejected application of the prison mailbox rule.
       We addressed a similar issue in Stoot v. Cain, 570 F.3d 669, 672 (5th Cir.
2009). In Stoot, Louisiana prisoner Anthony Ray Stoot purportedly mailed an
appeal from the denial of post-conviction relief, but the Supreme Court of
Louisiana never received it. Id. at 670-71. Stoot asked a family member to
investigate after he failed to receive confirmation of receipt of his petition. Id.
at 671. The family member discovered that the petition was never received
and Stoot filed a second petition which was “denied.” The district court then
dismissed Stoot’s federal application as untimely. Id. at 670-71. On appeal,
we concluded that Louisiana would apply the prison mailbox rule even when
the timely pleading was never received by the state court. Stoot, 570 F.3d at
671. Specifically, we concluded that:


       1 In granting a COA, we also concluded that the available pleadings and record did
not clearly show that a COA was not warranted on Bradshaw’s four claims of ineffective
assistance of counsel.
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                                  No. 15-50943
      [A] pro se prisoner's pleading is deemed filed on the date that the
      prisoner submits the pleading to prison authorities to be mailed,
      regardless of whether the pleading actually reaches the court.
      Under such a rule, it is of course incumbent upon the petitioner to
      diligently pursue his petition. A failure to inquire about a lost
      petition is strong evidence that the petition was, in fact, never sent.

Id. at 672. After noting that “reference to prison mail logs usually answers the
question of when the petition was actually mailed,” we concluded that “we are
ill-equipped to determine whether Stoot’s allegations are true.” Id. at 672.
Thus, we reversed and remanded to the district court for a factual inquiry into
whether Stoot submitted a timely petition.
      The majority attempts to distinguish Stoot on the basis that, “[o]ur
opinion in Stoot did not indicate that the prisoner there ever directly raised his
mailbox-rule argument to the SCLA concerning the timeliness of his first
petition.”   However, our opinion also did not indicate that Stoot failed to
present such an argument. This court said: “In his objections to the magistrate
judge's report, Stoot, for the first time, asserted that he had mailed an earlier
petition to the Louisiana Supreme Court on November 23, 2005, within the
Rule X, § 5(a) deadline.” Stoot, 570 F.3d at 671. There is no discussion of what
Stoot did or did not argue to the Louisiana Supreme Court – only what he
argued in the district court. Further, the Louisiana Supreme Court opinion
offers no insight into what Stoot argued. Stoot v. Louisiana, 939 So.2d 1271
(La. 2006). Thus, I perceive no basis for distinction. Regardless, even if Stoot
did not raise a mailbox-rule argument to the Louisiana Supreme Court, that is
not sufficient to distinguish it from this case.
      As the majority acknowledges, we already know that Texas applies the
prison mailbox rule in both civil and criminal cases. See Richards v. Thaler,
710 F.3d 573, 577-78 (5th Cir. 2013).



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                                  No. 15-50943
      Rejecting application of the prison mailbox rule when courts do not
receive filings that were delivered to prison officials for mailing contradicts the
very nature of the rule. As the United States Supreme Court has said:
             The situation of prisoners seeking to appeal without the aid
      of counsel is unique. Such prisoners cannot take the steps other
      litigants can take to monitor the processing of their notices of
      appeal and to ensure that the court clerk receives and stamps their
      notices of appeal before the 30-day deadline. Unlike other litigants,
      pro se prisoners cannot personally travel to the courthouse to see
      that the notice is stamped “filed” or to establish the date on which
      the court received the notice. Other litigants may choose to entrust
      their appeals to the vagaries of the mail and the clerk's process for
      stamping incoming papers, but only the pro se prisoner is forced to
      do so by his situation. And if other litigants do choose to use the
      mail, they can at least place the notice directly into the hands of
      the United States Postal Service (or a private express carrier); and
      they can follow its progress by calling the court to determine
      whether the notice has been received and stamped, knowing that
      if the mail goes awry they can personally deliver notice at the last
      moment or that their monitoring will provide them with evidence
      to demonstrate either excusable neglect or that the notice was not
      stamped on the date the court received it. Pro se prisoners cannot
      take any of these precautions; nor, by definition, do they have
      lawyers who can take these precautions for them. Worse, the pro
      se prisoner has no choice but to entrust the forwarding of his notice
      of appeal to prison authorities whom he cannot control or supervise
      and who may have every incentive to delay. No matter how far in
      advance the pro se prisoner delivers his notice to the prison
      authorities, he can never be sure that it will ultimately get
      stamped “filed” on time. And if there is a delay the prisoner
      suspects is attributable to the prison authorities, he is unlikely to
      have any means of proving it, for his confinement prevents him
      from monitoring the process sufficiently to distinguish delay on the
      part of prison authorities from slow mail service or the court clerk's
      failure to stamp the notice on the date received. Unskilled in law,
      unaided by counsel, and unable to leave the prison, his control over
      the processing of his notice necessarily ceases as soon as he hands
      it over to the only public officials to whom he has access - the prison
      authorities - and the only information he will likely have is the

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                                   No. 15-50943
      date he delivered the notice to those prison authorities and the
      date ultimately stamped on his notice.

Houston v. Lack, 487 U.S. 266, 270-72 (1988).
      There is no exception for mail never “stamped ‘filed.’” Id. To suggest
that there is a distinction is to open the door for public officials to intentionally
discard pro se inmate filings, leaving the inmates without recourse.
      Further, the majority cites no authority for such a distinction. The
majority attempts to derive support from Texas cases where the pleading
arrived after the deadline. See Campbell v. State, 320 S.W.3d 338, 340, 344
(Tex. Crim. App. 2010). But Campbell says nothing about the prison mailbox
rule not applying when a filing is never initially received.           Instead, the
language in Campbell and other similar cases supports the conclusion that
Bradshaw’s pleading was timely.           Bradshaw’s initial pleading was not
received.    After diligently following up on that pleading, Bradshaw
resubmitted it. That resubmitted pleading arrived after the filing deadline –
just like Campbell’s pleading arrived after the deadline. However, since both
timely submitted their pleadings to prison authorities for mailing, both should
receive the benefit of the prison mailbox rule.
      Additionally, as the majority acknowledges, every other circuit to
consider this issue has concluded that the prison mailbox rule clearly applies
even when the court never receives the filing. See United States v. McNeill,
523 F. App’x 979, 982 (4th Cir. 2013); Ray v. Clements, 700 F.3d 993, 1004 (7th
Cir. 2012); Jones v. Heimgartner, 602 F. App’x 705 (10th Cir. 2015); and Allen
v. Culliver, 471 F.3d 1196, 1198 (11th Cir. 2006); and Huizar v. Carey, 273 F.3d
1220, 1223 (9th Cir. 2001). The only cases not applying the rule are from states
such as Nevada, which “has squarely rejected the prison mailbox rule for the
filing of its state habeas corpus petitions.” Orpiada v. McDaniel, 750 F.3d


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                                 No. 15-50943
1086, 1087 (9th Cir. 2014). Texas has not rejected the prison mailbox rule. See
Richards, 710 F.3d at 577-78.
      The issue here is not an extension of the prison mailbox rule, but merely
the application of the existing rule under Houston, 487 U.S. at 270-72. Instead,
the majority has improperly imposed an additional requirement that the
pleading actually reach the court and be acknowledged by the court. This
negates the very existence of the rule in Texas. As there is no authority for
doing so and it is contrary to both binding precedent and persuasive authority,
I would vacate the district court’s dismissal of Bradshaw’s 28 U.S.C. § 2254
petition and remand. Thus, I respectfully dissent.




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