                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                           June 29, 2004

                                                              Charles R. Fulbruge III
                             No. 02-41690                             Clerk


                         GILBERT ROY GOODWIN,

                                                Petitioner-Appellant,
                                 versus

  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
                           (1:02-CV-578)


Before BARKSDALE, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

     Gilbert Goodwin, Texas prisoner # 749472, appeals, pro se, the

denial of his 28 U.S.C. § 2254 habeas petition, which claims his

parole-denial violated the United States Constitution’s Ex Post

Facto Clause.   Respondent, who was not served in district court,

raises a time-bar.     Because the district court did not address

whether   Goodwin’s   petition   is   time-barred   under   28   U.S.C.      §

2244(d)(1)(D) and the record is not sufficient to decide this

issue, we retain jurisdiction of this appeal, but REMAND for the

district court to decide Respondent’s time-bar claim.


     *
      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this opinion should not be published and is not precedent except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.
                                 I.

     In 1993, Goodwin was convicted in Texas of felony aggravated

sexual assault. He was sentenced to ten years’ imprisonment, began

serving his sentence in March 1996, and is scheduled to be released

in March 2006.   Goodwin has been denied parole twice.

     On 25 June 2002, more than a year after the second parole-

denial, Goodwin filed a state habeas application, claiming:    the

Board of Pardons and Paroles denied him parole using a procedure

enacted after the commission of his offense, thereby violating the

Ex Post Facto Clause. Without written order, the Court of Criminal

Appeals denied his application on 14 August 2002.

     Goodwin’s federal habeas petition was received by the district

court on 26 August 2002; because he is proceeding pro se, it is

deemed properly filed on the date he submitted it to prison

authorities for mailing.   E.g., Cousin v. Lensing, 310 F.3d 843,

847 (5th Cir. 2002).   Accordingly, it appears his federal petition

was filed on 20 August 2002.

     Respondent was not served in district court.   And, in denying

relief, the district court did not decide whether the application

is time-barred; the issue is not mentioned.   Therefore, the record

contains only copies of Goodwin’s state and federal petitions

(including exhibits containing records of the parole-denials), but

does not contain affidavits or other documents concerning the time-

bar claim.


                                 2
                                       II.

     Because Goodwin filed his § 2254 petition after the effective

date of the Antiterrorism and Effective Death Penalty Act (AEDPA),

that Act controls.    E.g., Scott v. Johnson, 227 F.3d 260, 262 (5th

Cir. 2000), cert. denied, 532 U.S. 963 (2001). Goodwin appeals the

habeas-denial; Respondent asserts, inter alia, a time-bar.

     Respondent    could   not    raise      the   AEDPA    time-bar   claim    in

district court because Respondent was not served.              Goodwin opposes

this limitations     defense     and   Respondent     did    not   waive   it   in

district court; therefore, we can consider it.              Scott, 227 F.3d at

262-63.

     AEDPA’s operative provision, 28 U.S.C. § 2244(d)(1), provides:

          A 1-year period of limitation shall apply to
          an application for a writ of habeas corpus by
          a person in custody pursuant to the judgment
          of a State court. The limitation period shall
          run from the latest of—

          (A) the date on which the judgment became
          final by the conclusion of direct review or
          the expiration of the time for seeking such
          review;

          (B) the date on which the impediment to
          filing an application created by State action
          in violation of the Constitution or laws of
          the United States is removed, if the applicant
          was prevented from filing by such State
          action;

          (C) the date on which the constitutional
          right asserted was initially recognized by the
          Supreme Court, if the right has been newly
          recognized by the Supreme Court and made
          retroactively    applicable   to   cases    on
          collateral review; or

                                        3
            (D) the date on which the factual predicate
            of the claim or claims presented could have
            been discovered through the exercise of due
            diligence.

In addition, AEDPA provides for tolling the one-year limitations

period while a state habeas petition for the same claim is pending.

28 U.S.C. § 2244(d)(2).

     Respondent asserts, and Goodwin does not dispute, that, for

limitations purposes, § 2244(d)(1)(D) governs the filing of his

petition.    Although we have not decided in a published opinion

which § 2244(d)(1) subsection applies to claims predicated on

parole decisions, our sister circuits have regularly applied §

2244(d)(1)(D).      See Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir.

2003) (applying § 2244(d)(1)(D) to claim based on parole denial

with time running from date of parole decision); Wade v. Robinson,

327 F.3d 328, 333 (4th Cir. 2003) (same applied to revocation of

parole); Cook v. New York State Div. of Parole, 321 F.3d 274, 280

(2d Cir. 2003) (same).          We agree with those decisions.

     Accordingly,        the    one-year       period    for   filing    the   federal

petition    began   to    run    on   the      date     when   Goodwin    could   have

“discovered” the “factual predicate of [his] claim” for the parole-

denial “through the exercise of due diligence”.                          28 U.S.C. §

2244(d)(1)(D).      That one-year period was tolled from 25 June 2002

to 14 August 2002, while his state habeas petition was pending.                     28

U.S.C. § 2244(d)(2).



                                           4
     Goodwin’s Ex Post Facto claim springs from a 1995 Texas

statute, which increased the number of Board members required to

make parole decisions for prisoners convicted of certain crimes,

including aggravated sexual assault (for which he was convicted).

In May 1991, when Goodwin committed the sexual assault, parole

decisions were made by panels composed of three Board members and

required a majority vote.       TEX. CRIM. PROC. art. 42.18 § 7(e) (West

1991).     The new procedure enacted in 1995 requires the votes of

two-thirds of the entire Board (15 members) to grant parole.               TEX.

GOV’T CODE ANN. § 508.046 (West 2001).

     The new procedure was used for both of Goodwin’s parole-

denials.    Goodwin contends:     the voting records from his June 2001

parole-denial indicate that all three members who would have been

assigned to review him under the former procedure voted in favor of

parole; therefore, he would have been granted parole under that

procedure.    Accordingly, Goodwin claims the application of the new

procedure to his 2001 parole proceeding violates the Ex Post Facto

Clause because it increased his sentence.

     Goodwin was first denied parole on either 4 February 1999 or

1 June 2000 (Respondent uses the latter date); Respondent contends

Goodwin’s claim arose then because the parole-denial was also

through the new procedure.         Therefore, Respondent reasons that

Goodwin’s    federal   petition    is       time-barred   because   his   state

petition was not filed until 25 June 2001, more than one year

later.

                                        5
       Goodwin concedes that, if his claim arose upon his first

parole-denial, his petition is time-barred.         He asserts, however,

that his claim did not arise until his second parole-denial in June

2001.   Although not fully addressed in his reply brief, it appears

Goodwin asserts his claim arose in 2001 because he believes the

number of members recommending parole in the 2001 proceeding would

have    been   sufficient   to   grant   him   parole   under   the   former

procedure, whereas the votes from the first parole-denial would not

have been. In the alternative, Goodwin requests equitable tolling.

       To decide Goodwin’s claim, including whether it arises from

the first or second parole-denial, we would be required to address

the substantive law of the Ex Post Facto Clause.         Goodwin’s claim,

however, may be time-barred, even if it arose from his June 2001

parole-denial.     Because we have a duty to avoid constitutional

issues that need not be resolved in order to determine the rights

of the parties, see, e.g., City of Abilene v. United States

Environmental Protection Agency, 325 F.3d 657, 660 (5th Cir. 2003),

the time-bar issue must be resolved first.

       As discussed, if Goodwin’s claim arose upon the first parole-

denial, it is obviously time-barred; he concedes that.           If we look

to the second parole-denial, numerous factual issues must be

resolved.      Goodwin was denied parole on 7 June 2001; his state

habeas petition was filed on 25 June 2002.        Therefore, if his claim

arose on the day the Board denied parole, his federal petition was


                                     6
time-barred even before he filed his state petition.        Goodwin

contends, however, that he could not have discovered the factual

predicate for his claim on the parole-denial date because he did

not receive notice of it until later.       Purported Parole Board

records attached to Goodwin’s reply brief reflect that written

notice of the June hearing was mailed to him on 8 June 2001, but

Goodwin maintains the notice must have been lost in the prison mail

system because he did not receive it.   He contends his claim arose

when he received notice of his parole-denial from his family, when

they visited him in prison.   He contends he cannot recall the exact

date, but believes this visit occurred, at the earliest, on 1 July

2001.

     Assuming, arguendo, that Goodwin’s claim arose on 1 July 2001,

the one-year AEDPA limitations period ran until Goodwin tolled it

by filing his state petition on 25 June 2002, leaving several days

remaining for his one-year period.      Upon the resolution of his

claim by the Court of Criminal Appeals on 14 August 2002, the

period began to run again and Goodwin filed his federal petition

six days later on 20 August 2002, assuming he placed it then in the

prison mailing system.   Based on these assumptions, his federal

petition may have been timely filed.

     As noted, the record is not sufficient, however, to make these

findings.   Goodwin asserts in his reply brief that he did not

receive the Parole Board’s written notice and could not have


                                  7
discovered   the   factual   basis    for   his   claim   until   his   family

informed him of the parole-denial; the district court did not

decide this issue and the record does not contain supporting

affidavits or other documents.        In Phillips v. Donnelly, 216 F.3d

508 (5th Cir. 2000), for example, we remanded to allow petitioner

to establish that he had not received notice of the denial of his

state habeas petition and therefore was entitled to equitable

tolling for his federal petition.

                                     III.

     For the foregoing reasons, we retain jurisdiction of this

appeal, but REMAND for the district court to decide Respondent’s

time-bar claim.

                                                                  REMANDED




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