                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                         F I L E D
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT                October 26, 2005

                  ))))))))))))))))))))))))))         Charles R. Fulbruge III
                                                             Clerk
                        No. 03-40927

                  ))))))))))))))))))))))))))

                    ROBERT F. CALDWELL,

                   Petitioner–Appellant,

                             vs.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
             CORRECTIONAL INSTITUTIONS DIVISION,

                    Respondent–Appellee.


        Appeal from the United States District Court
              for the Eastern District of Texas



                  ))))))))))))))))))))))))))

                        No. 03-20900

                  ))))))))))))))))))))))))))

                   PETE RONALD MARTINEZ,

                   Petitioner–Appellant,

                             vs.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
             CORRECTIONAL INSTITUTIONS DIVISION,

                    Respondent–Appellee.


        Appeal from the United States District Court
             for the Southern District of Texas
                       ))))))))))))))))))))))))))

                             No. 04-10062

                       ))))))))))))))))))))))))))

                        DAVID FRANKLIN BECK,

                        Petitioner–Appellant,

                                   vs.

  DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
               CORRECTIONAL INSTITUTIONS DIVISION,

                        Respondent–Appellee.



            Appeal from the United States District Court
                  for the Northern District of Texas


Before WIENER, DeMOSS, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

     The issue in this case is whether orders of deferred

adjudication community supervision1 and straight probation are

final judgments for purposes of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) one-year statute of

limitations.2    This is a question of first impression in this

circuit.    We hold that orders of deferred adjudication and

straight probation are final judgments for purposes of AEDPA’s

one-year statute of limitations.        For the reasons that follow, we


     1
       Throughout this opinion, the term “probation” is used
interchangeably with the term “community supervision.”
     2
         28 U.S.C. § 2244(d)(1).

                                    2
affirm the judgments of the district courts.

                                   I

     The district courts dismissed Petitioners-Appellants’ habeas

corpus petitions on procedural grounds.    Thus, only the

procedural posture of the three cases are relevant to the

question before us.

                      A. Robert Franklin Caldwell

     Robert Franklin Caldwell was indicted for the felony offense

of aggravated assault.    He pleaded guilty to the charges, and on

June 17, 1998, the state trial court placed Caldwell on ten years

of deferred adjudication probation.    An order of deferred

adjudication, by definition, defers an adjudication of guilt or

innocence.   Pursuant to the order of deferred adjudication,

Caldwell was placed on probation for a period of ten years.

Caldwell did not seek direct review of the deferred adjudication

order.

     Caldwell subsequently violated the terms of his probation,

and on April 28, 2000, the state trial court revoked his

probation.   Pursuant to his earlier guilty plea, the state trial

court issued a judgment finding Caldwell guilty of aggravated

assault.   Caldwell was sentenced to twenty-five years in prison.

He timely appealed to the court of appeals, which dismissed the

portion of his appeal regarding the state trial court’s judgment

to proceed with adjudication for lack of jurisdiction.      The court



                                   3
of appeals affirmed the remainder of the judgment, issuing a

mandate in November of 2001.3

     Caldwell filed his second4 state application for habeas

corpus relief challenging his conviction in February 2002.     The

Texas Court of Criminal Appeals denied habeas relief without

written order.   On September 5, 2002, Caldwell filed a petition

for federal habeas relief.   The magistrate judge found that

AEDPA’s one-year statute of limitations had began to run on July

17, 1998, thirty days after the trial judge entered the order of

deferred adjudication community supervision, and expired on July

17, 1999.   The district court adopted the magistrate judge’s

report and recommendation and dismissed Caldwell’s petition as

untimely.

     Caldwell timely filed a notice of appeal.   The district

court granted Caldwell a certificate of appealability to this

court on whether the district court erred in determining that all

issues relating to Caldwell’s guilty plea and the deferred

     3
       A decision becomes final thirty days from the date the
judgment is issued, where thirty days is the period for filing a
petition for discretionary review in state court. “[T]he
issuance of the mandate by the state court of appeals is of no
consequence for the purposes of § 2244(d)(1)(A).” Roberts v.
Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003).
     4
       Caldwell filed his first state application for habeas
corpus relief on June 22, 2000. On August 16, 2000, the Texas
Court of Criminal Appeals dismissed his first habeas application
due to the fact that his direct appeal was still pending. This
state application would have tolled the one-year statute of
limitations period had it been filed prior to its expiration.


                                 4
adjudication community supervision became final thirty days after

the order was imposed, rather than thirty days after the formal

adjudication of guilt.

                       B. Pete Ronald Martinez

     Pete Ronald Martinez was indicted for the felony offense of

aggravated robbery.    He pleaded guilty to aggravated robbery with

a deadly weapon on January 22, 1998.       The state trial court found

sufficient evidence substantiating Martinez’s guilt and placed

him on ten years deferred adjudication community supervision.

Martinez violated the terms of his community supervision, and on

August 28, 2000, the state trial court adjudicated Martinez

guilty pursuant to his earlier guilty plea.      The state trial

court sentenced him to forty-five years imprisonment.

     Martinez filed a motion for a new trial in September 2000.

The trial court denied the motion for a new trial, and Martinez

appealed, complaining of the effectiveness of his attorney at the

original plea hearing.    The court of appeals dismissed the appeal

in October 2001 for lack of jurisdiction, reasoning that

Martinez’s ineffective assistance claim had to be raised in an

appeal from the imposition of deferred adjudication probation.5

     Martinez filed a state writ of habeas corpus in July 2002.

The Texas Court of Criminal appeals denied the application

without written order.    Martinez filed his federal writ petition


     5
         See discussion Part II.A infra.

                                  5
on December 5, 2002, raising issues relating to his guilty plea.

Unlike the magistrate judge’s determination in Caldwell’s case,

the federal district court concluded that AEDPA’s one-year

statute of limitations began to run from the judgment

adjudicating guilt, entered after the trial court revoked

Martinez’s deferred adjudication community supervision.       Thus,

according to the district court’s order, the AEDPA one-year

limitations period began to run thirty days after the assessment

of the forty-five year sentence.       However, the district court

found that Martinez’s petition was nevertheless time-barred since

it concluded that Martinez’s state court application for habeas

relief did not toll AEDPA’s statute of limitations.6

     Martinez timely filed his notice of appeal.       The district

court granted Martinez a certificate of appealability on whether

his conviction became final after the expiration of the time for

appealing his guilty plea and the deferred adjudication, or if

his conviction became final after the expiration of time for

appealing the state court’s judgment adjudicating guilt.



     6
       Because under the district court’s order, Martinez’s
federal habeas petition would have been time barred regardless of
when AEDPA’s statute of limitations began to run, respondent
argues that Martinez’s claim is moot. However, in Foreman v.
Dretke, we held that a timely appeal to state court, dismissed
for want of jurisdiction, tolls AEDPA’s statute of limitations.
383 F.3d 336, 340 (5th Cir. 2004). Therefore, whether the
statute of limitations began to run at the time the order
deferring adjudication was issued or at the time Martinez’s guilt
was adjudicated is outcome determinative in Martinez’s case.

                                   6
                     C. David Franklin Beck

     David Franklin Beck was charged with sexual assault of a

child. Beck pleaded not guilty but was convicted by a jury.

Pursuant to the jury’s recommendation, the trial court sentenced

Beck to ten years community supervision on February 23, 2000.     In

February 2001 the court of appeals affirmed Beck’s conviction.

     Beck violated the terms of his probation, and in May of

2001, the state moved to revoke Beck’s probation.   The trial

court revoked Beck’s probation on June 29, 2001 and sentenced him

to ten years confinement.   Beck gave timely notice of appeal from

the judgment revoking his community supervision but withdrew the

notice of appeal in early March 2002.

     Subsequently, on March 12, 2002, Beck filed an application

for state habeas relief, pursuant to article 11.07 of the Texas

Code of Criminal Procedure.   The Texas Court of Criminal Appeals

denied Beck’s application for writ of habeas corpus without

written order in August 2002.   Beck filed a petition for writ of

habeas corpus in federal district court on October 8, 2002.     In

June 2003, the magistrate judge recommended that Beck’s petition

be denied as barred by the limitations period.   The magistrate

judge agreed with the State that Beck’s conviction became final

on March 9, 2001, the date on which the time to file a petition

for discretionary review in the Texas Court of Criminal Appeals

expired. According to the magistrate judge, AEDPA’s statute of



                                 7
limitations period expired on March 9, 2002, three days before

Beck filed his state habeas application.   The district court

adopted the findings and recommendation of the magistrate judge.

     Beck gave timely notice of appeal from the judgment entered

by the district court.   The district court granted a certificate

of appealability to Beck on the issue of when a conviction and

imposition of a probationary sentence, which is subsequently

revoked, is final for purposes of AEDPA’s one-year statute of

limitations period.

                                 II

     We review a district court’s denial of a habeas application

on procedural grounds de novo.   Larry v. Dretke, 361 F.3d 890,

893 (5th Cir. 2004); Emerson v. Johnson, 243 F.3d 931, 932 (5th

Cir. 2001).

     AEDPA procedure governs these cases because each habeas

petition was filed pursuant to 28 U.S.C. § 2254, after AEDPA’s

effective date.7   Hughes v. Dretke, 412 F.3d 582, 588 (5th Cir.

2005).   AEDPA requires that “an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State

court” be filed within one-year of “the date on which the

judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.”   28 U.S.C. §



     7
       AEDPA became effective on April 24, 1996.   See Martinez v.
Dretke, 404 F.3d 878, 884 (5th Cir. 2005).

                                 8
2244(d)(1).

     In the case of Petitioners Caldwell and Martinez, the issue

is whether an order of deferred adjudication following a guilty

plea is a final judgment upon the expiration of the time for

seeking direct review, for purposes of section 2244, when the

applicant only challenges issues pertaining to his guilt.    If an

order of deferred adjudication is a final judgment for this

purpose, then Petitioners’ habeas petitions are untimely because

they were filed more than one year after the orders of deferred

adjudication issued.   If an order of deferred adjudication is not

a final judgment for purposes of section 2244, however, then the

judgment adjudicating guilt triggered the statute of limitations,

and Petitioners’ habeas applications are timely.

     In Petitioner Beck’s case, the issue is whether a judgment

entered pursuant to a guilty verdict that results in community

supervision is a final judgment upon the expiration of the time

for seeking direct review, for purposes of section 2244, when the

applicant only challenges issues pertaining to his guilt.      If an

order imposing straight community supervision is final for

purposes of section 2244, then Beck’s habeas petition is

untimely. However, if an order imposing community supervision is

not a final judgment for these purposes, then the statute of

limitations began to run when Beck’s probation was revoked. In

that case, his habeas petition is timely.

     The district courts within the Fifth Circuit are split as to

                                 9
whether an order of deferred adjudication constitutes a final

judgment for purposes of section 2244.   See Wilkinson v.

Cockrell, 240 F. Supp. 2d 617, 620-22 (N.D. Tex. 2002).     Many

have concluded that an order of deferred adjudication is not a

final judgment and therefore does not trigger AEDPA’s statute of

limitations.   These courts have held that the judgment

adjudicating guilt is the relevant state-court judgment for

purposes of 28 U.S.C. § 2244(d)(1).   In those instances, the

courts have reasoned that either (1) an order of deferred

adjudication is not a final judgment because it is not a

judgment; or (2) an order of deferred adjudication is not a final

conviction because there has been no adjudication of guilt.8       By

contrast, some district courts have held that an order of




     8
       See, e.g., Samford v. Dretke, No. 3:03-CV-1969-M, 2005 WL
1017872, at *2 (N.D. Tex. Apr. 27, 2005) (holding that the trial
court’s Deferred Adjudication Order was not a judgment under
Texas law, but merely an appealable order); Daugherty v. Dretke,
No. 3:01-CV-0202-N, 2003 WL 23193260, at *6-8 (N.D. Tex. Dec. 24,
2003)(finding that an order of deferred adjudication is not a
judgment for purposes of 28 U.S.C. § 2244(d)); Standridge v.
Cockrell, No. 4:02-CV-462-Y, 2002 WL 31045977, at *3 (N.D. Tex.
Sept. 10, 2002)(stating that placement on deferred adjudication
probation is not a final conviction because there has been no
adjudication of guilt); Jamme v. Cockrell, No. 3:01-CV-1370-L,
2002 WL 1878403, at *2-3 (N.D. Tex. Aug. 12, 2002) (holding that
deferred adjudication probation is not a final judgment for
purposes of 28 U.S.C. § 2244); Cutrer v. Cockrell, No.
3:01-CV-0841-D, 2002 WL 1398558, at *2-5 (N.D. Tex. June 26,
2002) (finding that an order of deferred adjudication probation
is not a judgment within the meaning of 28 U.S.C. § 2244 or state
law).

                                10
deferred adjudication or straight probation9 is a final judgment

that triggers the running of the statute of limitations under

section 2244.10

A. Is an order of deferred adjudication a judgment for purposes
of section 2244?

     First, we address whether an order deferring adjudication

community supervision is a judgment for purposes of section 2244.

Petitioners Caldwell and Martinez contend that we should look to

Texas state law to determine the meaning of the term “judgment”

in section 2244.   According to Texas state law, “A judgment is

the written declaration of the court signed by the trial judge

and entered of record showing the conviction or acquittal of the

defendant.”   TEX. CRIM. PROC. CODE ANN. art. 42.01.11   Therefore,


     9
       A judgment of straight probation, as in Petitioner Beck’s
case, is a “judgment” under both federal and Texas state law
since there is a formal adjudication of guilt. See discussion
Part II.A infra. However, Beck argues that an order of probation
is not final for purposes of section 2244(d)(1).
     10
       See Wilkinson, 240 F. Supp. 2d at 621-22(“There is no
requirement in § 2244(d)(1)(A) that the final judgment
contemplated by the statute be one that makes a determination of
guilt.”); Jiminez v. Cockrell, No. 4:03-CV-0090-Y, 2003 WL
21321256, at *4 (N.D. Tex. May 19, 2003)(holding that “the
statute of limitations begins for purposes of § 2244(d)(1)(A)
when a Texas state court deferred adjudication order becomes
final by the conclusion of direct review or the expiration of the
time for seeking such review, notwithstanding the fact that there
has been no determination of guilt.”); DeLeon v. Cockrell, No.
5:01-CV-231-C, 200 U.S. Dist. LEXIS 10612, at *4 (N.D. Tex. June
12, 2002)(stating petitioner’s conviction became final thirty
days after he was sentenced and placed on probation).
     11
       The portions of this statute discussed are those prior to
the amendments effective on September 1, 2005.

                                  11
among other “typical trappings of a Texas judgment,”12 a final

judgment must contain a conviction or acquittal of the defendant.

 Id.    Caldwell and Martinez argue that because a deferred

adjudication, by definition, defers an adjudication of guilt or

innocence, such an order is not a judgment under Texas law,13 and

consequently should not be a judgment under section 2244.

       The plain language of AEDPA, as well as its underlying

purpose, lead us to disagree.    In interpreting AEDPA, our task is

to construe what Congress has enacted, beginning with the

language of the statute.     Duncan v. Walker, 533 U.S. 167, 172

(2001).     It is an elementary canon of statutory construction that

we must give a term consistent meaning throughout an act.       Morse

v. Republican Party, 517 U.S. 186, 249-50 (1996).     In

interpreting the term “judgment,” we observe that the term should

be construed, if possible, consistently throughout AEDPA.       See

Gustafson v. Alloyd Co., 513 U.S. 561, 568 (1995).

       Petitioners’ interpretation of the phrase “person in custody

pursuant to the judgment of a State court” would result in two


       12
       Cutrer, 2002 WL 1398558, at *3. Features of a Texas
judgment also include a section addressing the proper punishment,
the term of sentence, the date the judgment was entered, the date
the sentence was imposed, etc. See TEX. CRIM. PROC. CODE ANN. art.
42.01; Cutrer, 2002 WL 1398558, at *3.
       13
       “The whole point of [the deferred adjudication] statute
is to avoid having to formally adjudicate the defendant’s guilt
unless and until he demonstrates that he cannot abide by the
terms of probation set by the court.” Ex parte Laday, 594 S.W.2d
102, 104 (Tex. Crim. App. 1980).

                                  12
different meanings within AEDPA.      See Shelby v. Bartlett, 391

F.3d 1061, 1064 9th Cir. 2004). Section 2254 of AEDPA confers

jurisdiction on federal courts to hear habeas petitions by those

“in custody pursuant to the judgment of a State court.”14

Therefore, a person, like the Petitioners, who wishes to bring a

habeas petition pursuant to section 2254 in federal court, must

be in custody pursuant to the judgment of a state court.     Like

section 2254, section 2244(d)(1) of AEDPA imposes a one-year

statute of limitations on an application for writ of habeas

corpus by a “person in custody pursuant to the judgment of a

State court.”   If as Petitioners suggest, an order deferring

adjudication is not a judgment pursuant to a state court for

purposes of section 2244, then a habeas petition under AEDPA

section 2254 would be brought by a “person in custody pursuant to

the judgment of a State court” for purposes of habeas

jurisdiction, but would not be brought by a “person in custody

pursuant to the judgment of a State court” for purposes of

AEDPA’s limitation period.15   See id.; Kimbrell v. Cockrell, 311


     14
       See 28 U.S.C. § 2254(a) (“The Supreme Court, a Justice
thereof, a circuit judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court.”).
     15
       Petitioners do not argue that there is no federal habeas
jurisdiction to hear petitions brought by those challenging
custody pursuant to an order deferring adjudication before guilt
has been adjudicated. In such a situation, there is jurisdiction
under section 2254. See, e.g., Sawyer v. Sandstrom, 615 F.2d
311, 313 n.1 (5th Cir. 1980)(stating that a petitioner whose

                                 13
F.3d 361, 363 (5th Cir. 2002).     This inconsistency implies that

Petitioners are incorrect, and an order deferring adjudication is

a judgment for purposes of triggering AEDPA’s limitation period.

     Although an order of deferred adjudication is not a judgment

under Texas law, it is a judgment under the relevant federal law.

The Federal Rules of Civil Procedure explicitly state that they

are applicable to habeas corpus proceedings. FED. R. CIV. P. 81.16

In addition, the Rules Governing Section 2254 Cases, Rule 11,

states that “[t]he Federal Rules of Civil Procedure, to the

extent that they are not inconsistent with any statutory

provisions or these rules, may be applied to a proceeding under

these rules.”   The Federal Rules of Civil Procedure define

“judgment” as including “a decree or any order from which an

appeal lies.”   FED. R. CIV. P. 54; see also BLACK’S LAW DICTIONARY

(8th ed. 2004)(“The term judgment includes an equitable decree



sentence had been stayed was eligible for federal habeas relief);
Barry v. Bergen County Probation Dept., 128 F.3d 152, 159-61 (3d
Cir. 1997)(holding that petitioner sentenced to 500 hours of
community service was eligible to petition for habeas relief);
Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (stating
petitioner on probation eligible for habeas relief under section
2254(a)).
     16
          These rules are applicable to proceedings for admission
          to citizenship, habeas corpus, and quo warranto, to the
          extent that the practice in such proceedings is not set
          forth in statutes of the United States, the Rules
          Governing Section 2254, or the Rules governing Section
          2255 Proceedings, and has heretofore conformed to the
          practice in civil actions.

FED. R. CIV. P. 81.

                                  14
and any order from which an appeal lies.”).

     An appeal lies from both an order of deferred adjudication

and an order of straight probation.   In Manuel v. State, the

Texas Court of Criminal appeals held that a defendant placed on

deferred adjudication community supervision, like defendants

placed on regular community supervision, may appeal issues

relating to the original plea proceedings when the deferred

adjudication community supervision is first imposed.   994 S.W.2d

658, 661-62 (Tex. Crim. App. 1999).   In fact, the Manuel court

stated that a defendant on regular or deferred community

supervision may only appeal issues relating to the original plea

proceedings when deferred adjudication community supervision is

originally imposed.   Id. (“We have long held that a defendant

placed on ‘regular’ community supervision may raise issues

relating to the conviction, such as evidentiary sufficiency, only

in appeals taken when community supervision is originally

imposed. . . . we now hold that this rule also applies in the

deferred adjudication context.”).    Thus, according to the plain

meaning of the word “judgment,” an order of deferred adjudication

community supervision, in addition to an order of straight or

regular community supervision, is a judgment for purposes of

section 2244.

     This result is consistent with Congress’s stated legislative

intent in enacting AEDPA.   The Committee of Conference explained


                                15
that the intent of the habeas corpus reforms was to “curb the

abuse of the statutory writ of habeas corpus,” and “address

problems of unnecessary delay.”      H.R. CONF. REP. NO. 104-518, at

111 (1996).     Permitting a petitioner to bring a habeas corpus

petition challenging an order of probation as many as ten years

after he was originally placed on probation would be contrary to

congressional intent.17    The Supreme Court has recognized that

“AEDPA’s purpose [is] to further the principles of comity,

finality, and federalism.”     Williams v. Taylor, 529 U.S. 420, 436

(2000); Duncan v. Walker, 533 U.S. 167, 178 (2001).       Section

2244(d)(1) “reduces the potential for delay on the road to

finality by restricting the time that a prospective federal

habeas petitioner has in which to seek federal habeas review.”

Duncan, 535 U.S. at 179.     The result we reach today is consistent

with this purpose.

B. Is a judgment of deferred adjudication or straight probation
final for purposes of section 2244?

     Second, we address whether an order of deferred adjudication

or straight probation is a final judgment for purposes of section

2244.     We conclude that it is.   In Roberts v. Cockrell, we held

that federal law controls when a state conviction becomes final

for purposes of section 2244(d)(1)(A). 319 F.3d 690, 694 (5th



     17
        Texas law permits a judge to impose deferred adjudication
community supervision for up to ten years in a felony case. TEX.
CRIM. PROC. CODE ANN. art. 42.12 § 5(a).

                                    16
Cir. 2003).    We stated that “although we are sensitive to state

law when determining whether a motion is still pending, federal

law still determines the time limits under AEDPA.” Id. at 693

(internal quotations omitted); see also Lookingbill v. Cockrell,

293 F.3d 256, 262 (5th Cir. 2002) (stating that federal law

determines the time limits under AEDPA); Foreman, 383 F.3d at 339

(“Texas rules [do] not control AEDPA reivew.”).    We noted that

the language of section 2244(d)(1)(A) provides that a decision

becomes final “by the conclusion of direct review or the

expiration of the time for seeking such review.”    Id.

     Petitioner Beck argues, however, that his conviction was not

final under state law until his probation was revoked and his

appeal from the revocation was dismissed.    Beck contends that

according to article 11.07 of the Texas Code of Criminal

Procedure, he was not eligible under state law to collaterally

attack his conviction until the felony judgment, from which he

was seeking relief, was final under Texas law.18    Thus, Beck

maintains that he was unable to exhaust state remedies until his

probation was revoked and his conviction became final under state

law.19    As the argument goes, an order imposing probation cannot


     18
       Habeas relief under article 11.07 requires a final
conviction. Under Texas law, probation is not a final conviction
for these purposes. See Ex parte Renier, 734 S.W.2d 349, 351
(Tex. Crim. App. 1987).
     19
       28 U.S.C. § 2254(b)(1) states that “An application for a
writ of habeas corpus on behalf of a prisoner in custody pursuant

                                  17
be final for purposes of section 2244 since, in that instance,

state law precluded Beck from achieving the prerequisite

requirements to bringing a federal habeas petition within the

federal statute of limitations.

     However, although Beck could not pursue collateral review

under article 11.07, he had an available remedy for habeas relief

under Texas Code of Criminal Procedure articles 11.05, 11.08, and

11.23.    See Ex parte Twyman, 716 S.W.2d 951, 952 (Tex. Crim. App.

1986); Ex parte Martell, 901 S.W.2d 754, 754 (Tex. Crim. App.

1995).    Thus, while on probation, Beck was entitled to

collaterally challenge any allegedly unlawful restraint in the

trial court where he was convicted.    Twyman, 716 S.W.2d at 952.

We conclude that, while on probation, Beck was able to exhaust

state remedies before AEDPA’s limitations period expired.

Therefore, we see no reason to depart from the definition of

finality provided in section 224(d)(1)(A).20   The judgment

imposing his probation became final by the conclusion of direct

review or the expiration of the time for seeking such review.


to the judgment of a State court shall not be granted unless it
appears that–the applicant has exhausted the remedies available
in the courts of the State.”
     20
       In Salinas v. Dretke, we held that state law controls
whether an out-of-time petition for discretionary review is part
of Texas’s direct or collateral review process. 354 F.3d 425,
430-31 (5th Cir. 2004). However, in that case, we explicitly
stated that we must look to federal law to determine the date an
event has occurred, such as the date a judgment becomes final.
Id. at 430 n.5.

                                  18
                                III

     Petitioner Caldwell was sentenced to ten years deferred

adjudication probation on June 17, 1998.   Caldwell did not seek

review of the deferred adjudication order.   Under Texas law, a

defendant must file a notice of appeal “within 30 days after the

day sentence is imposed or suspended in open court.”    TEX. R. APP.

P. 26.2(a)(1).   Thus, Caldwell’s deferred adjudication became

final for purposes of section 2244(d)(1)(A) on July 17, 1998, and

the statute of limitations began to run on that date.    Petitioner

Martinez was placed on community supervision by an order

deferring adjudication of guilt on January 22, 1998.    This order

became final on February 23, 1998.21   Therefore, the statute of

limitations set forth in section 2244 began to run on that date.

     Finally, Petitioner Beck was placed on community supervision

on February 23, 2000.   Beck appealed his conviction, and on

February 7, 2001, the court of appeals affirmed his conviction.

Beck did not seek a rehearing with the court of appeals or file a

petition for discretionary review with the Texas Court of

Criminal Appeals.   Therefore, under the federal definition of

finality, Beck’s conviction became final on March 9, 200122 for

     21
       January 22, 1998, thirty days from January 22, 1998, fell
on Saturday, February 21, 1998. Thus, Petitioner’s conviction
became final the following Monday, February 23, 1998.
     22
       See TEX. R. APP. P. 68.2(a) (“The petition [to the Texas
Court of Criminal Appeals] must be filed within 30 days after
either the day the court of appeals' judgment was rendered or the
day the last timely motion for rehearing was overruled by the

                                19
purposes of AEDPA.23   Cockrell, 319 F.3d at 694.

                                 IV

     Because an order of deferred adjudication community

supervision is a final judgment within the plain meaning of AEDPA

section 2244, the one-year statute of limitations, for

challenging substantive issues of the orders of deferred

adjudication, began to run when the order deferring adjudication

became final.24   Similarly, because a judgment imposing probation

is a final judgment within the plain meaning of AEDPA section

2244, the one-year statute of limitations for challenging

substantive issues relating to a judgment of jury verdict of


court of appeals.”).
     23
       Beck asks this court to equitably toll AEDPA’s statute of
limitations. The respondent argues that a certificate of
appealability was not issued on this question. We find that with
respect to Petitioner Beck, the issue of equitable tolling is
fairly incorporated in the question before this court. We review
a decision to invoke equitable tolling for abuse of discretion.
U.S. v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). We have
recognized that the one-year statute of limitations period of
section 2244(d)(1) may be equitably tolled. Davis v. Johnson,
158 F.3d 806, 811 (5th Cir. 1998). However, equitable tolling is
permitted only “in rare and exceptional circumstances.” Id.
Equitable tolling will not be granted if an applicant failed to
diligently pursue his rights. Larry v. Dretke, 361 F.3d 890, 897
(5th Cir. 2004). Although “we must be cautious not to apply the
statute of limitations too harshly,” here, there are no
exceptional circumstances. U.S. v. Patterson, 211 F.3d 927, 931
(5th Cir. 2000). Beck simply failed to challenge any unlawful
restraint in the trial court where he was convicted within the
prescribed time period.
     24
       Our holding is limited to instances where a petitioner
challenges substantive issues relating to an original order of
deferred adjudication probation or straight probation.

                                 20
guilt and probation, began to run when the judgment imposing

probation became final.   Consequently, each Petitioner’s habeas

corpus petition is time-barred.

                                  V

     We affirm the judgments of the district courts.




                                  21
DeMOSS, dissenting in part:

     With all due respect for the majority, I cannot join the

majority opinion in its entirety.

     As indicated in the majority opinion, these three separate

appeals are before us on grant of certificates of appealability

(COAs) by the district court as follows:

          1.   “The district court granted Caldwell a COA to this

court on whether the district court erred in determining all issues

relating to Caldwell’s guilty plea and the deferred adjudication

community supervision became final thirty days after the order was

imposed, rather than thirty days after the formal adjudication of

guilt”;

          2. “The district court granted Martinez a COA on whether

his conviction became final after the expiration of the time for

appealing his guilty plea and the deferred adjudication or if his

conviction became final after the expiration of the time for

appealing the state court’s judgment adjudicating guilt”; and

          3.   “The   district   court   granted   a   certificate   of

appealability to Beck on the issue of when a conviction and

imposition of probationary sentence, which is subsequently revoked,

is final for purposes of AEDPA’s one year statute of limitation.”

     In my view, the majority errs in its answers to the COAs in

Caldwell’s and Martinez’s appeals where it concludes that the

initial order of deferred adjudication by the state trial court
constitutes a final judgment that starts the running of the one-

year statute of limitation under AEDPA’s § 2244(d). See 28 U.S.C.

§2244(d). In my view, the majority is correct in concluding as to

Beck that the judgment of conviction based on the jury verdict and

the fixing of Beck’s sentence, even though that sentence was

probated pursuant to the jury recommendation, constitutes a final

judgment that   starts   the    running    of    the    one-year    statute    of

limitations under § 2244(d).

     The two processes available under Texas statutory provisions,

i.e., deferred adjudication on the one hand and probating the

sentence on the other hand, are separate and distinct processes

intended to serve separate and distinct purposes.                   In my view,

deferred adjudication under Texas law is a process intended to give

selected offenders an opportunity to avoid the stigma inherent in

the entry of a judgment of guilt for a felony offense by postponing

the actual determination of guilty for a period of years during

which a defendant who complies with the conditions specified by the

sentencing   judge   during    that   term      can    ultimately    receive   a

dismissal of the indictment or information against him. See Ex

parte Laday, 594 S.W.2d 102, 104 (Tex. Ct. Crim. App. 1980).                  If,

however, the defendant fails to comply with the conditions of the

deferred adjudication term, a judge can revoke the term of deferred

adjudication, enter an order adjudicating the defendant’s guilt,

and fix the sentence to be served by the defendant. See Dahlkoetter


                                      23
v. State, 628 S.W. 2d 255, 257-58 (Tex. Ct. App. 1982).                        Straight

probation of a sentence on the other hand occurs only after a

defendant     has    been     adjudicated       guilty    of   an    offense    and   his

sentence has been fixed, but the sentencing judge, either upon his

own recommendation or upon a recommendation by the jury, permits

the defendant to serve his sentence on probation without actual

incarceration.

       There are two absolute essentials to a final judgment in a

criminal case: first, a determination of guilt or the absence of

guilt and second, if the defendant is found guilty, a sentence

imposing a fine or requiring the defendant to serve time in prison

as punishment for that crime. See Hurley v. State, 130 S.W. 3d 501,

505 (Tex. App. – Dallas 2004, no pet.h)                  In the circumstance of a

deferred      adjudication,      these     two    essential         elements    are   not

determined      at     the    time   of   the     initial      order    for     deferred

adjudication, but are instead determined at some later time if, as,

and    when   the    defendant       on   deferred       adjudication       violates    a

condition of that deferred adjudication. See TEX. CODE CRIM. PROC.

art. 42.12 § 5(a); Hurley, 130 S.W. 3d at 505-06.                      In the case of

a defendant whose sentence is probated, the two essentials of

determination of guilt and determination of the punishment for the

crime have been determined, but for reasons separate and distinct

from    his    guilt     or    punishment,       the     defendant     is     given   the

opportunity to serve his sentence on probation instead of in


                                           24
prison.

       In further support of the distinction between these two

processes under Texas law, I would point out that the term of years

for deferred adjudication and the term of years to be served after

adjudication are not the same. Caldwell and Martinez both received

ten years of deferred adjudication but each got substantially

longer    terms    of    imprisonment          as    punishment    when     guilt    was

adjudicated. In the case of Becks’s straight probation, however,

the years of probation were the same as the years of punishment.

       As the majority opinion points out, the issues raised by the

COAs   before     us    in    these    three    appeals    are    issues     of     first

impression before this           Court and there is substantial conflict in

the federal district courts as to the proper resolution of these

issues. As indicated by footnote ten in the majority opinion, five

previous   district          court   opinions       previously    reached    the    same

conclusion as I do that an initial order of deferred adjudication

is not a final judgment.             That conclusion was likewise reached by

the district court in Martinez’s case, so there have been six prior

determinations by our district courts supporting my view. Footnote

ten of the majority opinion indicates the three prior cases in

which district courts have reached the same conclusion as the

majority opinion; and to that we must add the conclusion of the

district court in Caldwell’s case, so the final count is six to

four among the district courts favoring my view of the significance

of deferred adjudication.

                                          25
     One final consideration that motivates me to dissent from the

majority’s determination that the initial order in a deferred

adjudication process starts the one-year statute of limitation

running is that most defendants and their counsel have little cause

to worry about seeking appeal or habeas relief when the order

entered by the state trial judge in effect says “I’m not going to

adjudicate you guilty at this time, but give you a period of years

to earn a dismissal of the charges against you by complying with

the conditions of the deferred adjudication term I am defining for

you.”     I am aware, of course, of the abuses Congress intended to

eliminate through the restrictions created by AEDPA, one of which

is the new one-year statute of limitation in § 2244(d). I genuinely

doubt,     however,       that     Congress      specifically    addressed       the

circumstance of an order of deferred adjudication under Texas law

when it fixed one of the dates for the beginning of the one-year

statute of limitation as “the date on which the judgment became

final”.    The more likely date Congress contemplated is the date on

which the state court actually adjudicates guilt and fixes the

sentence    in    order    to     satisfy    Congress’s   policy   of    having   a

limitation period and still avoid the inadvertent loss of the

remedial benefits of the Great Writ, as occurred with Caldwell and

Martinez in this appeal under the majority’s approach.

     I    would   reverse        the   judgments   of   the   district   court    in

Caldwell and Martinez, and affirm the judgment of the district



                                            26
court in Beck.




                 27
