                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                _____________________________________

                             No. 00-20899
                _____________________________________


                        RODNEY FLYNN VANDUREN,

                                                 Petitioner-Appellant

                                  V.

 JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                     INSTITUTIONAL DIVISION,

                                                 Respondent-Appellee.


          __________________________________________________

             Appeal from the United States District Court
                   For the Southern District of Texas
                               (H-99-1804)
          __________________________________________________

                           January 11, 2002

Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit

Judges.

PER CURIAM:*

     Rodney Flynn Vanduren appeals the district court’s dismissal

of his 28 U.S.C. § 2254 habeas petition as barred by the one year

statute of limitations.    Vanduren primarily argues that the

statute of limitations should not begin to run until the date on

which the mandate was issued in his case.     This court granted

Vanduren’s Certificate of Appealability (“COA”) on the issues of

     *
      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this opinion should not be published and is not precedent except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.
(1) whether Vanduren properly presented the mandate issue to the

district court, thereby preserving it for appellate review; and

(2) whether Vanduren’s conviction did not become “final” for

purposes of the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”) until the mandate was issued.    Because we conclude that

the district court did not commit plain error, we affirm.

                                 I.

       On April 26, 1995, Vanduren was convicted of aggravated

robbery and sentenced to 42 years’ imprisonment.    The Texas

intermediate Court of Appeals affirmed the trial court’s judgment

on October 5, 1995.    After consideration of Vanduren’s pro se

brief, the intermediate Court of Appeals again affirmed

Vanduren’s conviction on October 2, 1997.    Vanduren then filed a

motion for rehearing, which the Court of Appeals ultimately

denied on February 12, 1998.    On April 29, 1998, Vanduren filed a

petition for discretionary review with the Texas Court of

Criminal Appeals, which that court rejected as untimely that same

day.    Finally, on June 15, 1998, the intermediate Court of

Appeals issued its mandate.    Vanduren filed his only application

for state habeas on December 2, 1998, which the Texas Court of

Criminal Appeals denied on February 10, 1999.

       On June 7, 1999, Vanduren filed a petition for federal

habeas relief, alleging ineffective assistance of counsel and




                                 -2-
various other claims attacking the validity of his conviction.1

The district court dismissed Vanduren’s habeas petition as barred

by the AEDPA’s one year statute of limitations.2   Ultimately, the

district court found that Vanduren’s conviction became final for

the purposes of the AEDPA on March 14, 1998, when time expired

for Vanduren to seek discretionary review of the Texas

intermediate Court of Appeals’ denial of his motion for

rehearing.3   Tolling the statute of limitations while his state

habeas application was pending, the district court determined

that Vanduren’s federal petition was untimely because it was

filed after May 25, 1999.

     Vanduren then applied for a COA in the district court on

October 10, 2000, in which he argued to the district court for

the first time that the AEDPA’s one year statute of limitations

     1
          The AEDPA applies to Vanduren’s petition because the
petition was filed after the AEDPA’s enactment in 1996. See Lindh
v. Murphy, 521 U.S. 320, 324-36 (1997).
     2
          28 U.S.C. § 2244(d)(1)-(d)(1)(A) provides that “[t]he
limitation period shall run from the latest 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.”
     3
          The district court originally found that Vanduren’s
conviction became final on November 1, 1997, when time expired for
him to seek discretionary review of the Court of Appeals’ October
7, 1997, affirmance.    Vanduren then filed a motion to alter or
amend judgment under Federal Rule of Civil Procedure 59 (e). The
district court granted the motion to the extent that it changed the
date the conviction became final to March 14, 1998, 30 days after
the date Vanduren’s motion for rehearing was denied. The district
court noted that this change to the limitations calculation did not
affect the outcome of its previous dismissal, as even using the
later date, Vanduren’s habeas petition was still untimely.

                                -3-
did not begin to run until the mandate was issued.     The district

court rejected his application.     Vanduren then filed a COA

application in this court, which was granted.     This appeal

followed.

                                  II.

     Vanduren argues that the district court improperly

calculated the statute of limitations in his case.     Specifically,

Vanduren asserts that his conviction was not “final” under the

AEDPA, and thus the statute of limitations did not begin to run,

until the date on which mandate was issued.     Vanduren did not

raise this issue, however, until he applied for a COA in the

district court.   Therefore, we review the district court’s

judgment at the most for plain error.

     Plain error is (1) an error, (2) that is clear or obvious,

and (3) that affects the defendant’s substantial rights.4       Even

if all of these factors are met, however, this court will

exercise its discretion to correct the error only if the error

“seriously affects the fairness, integrity, or public reputation

of judicial proceedings.”5

     In relevant part, the AEDPA provides that “[t]he limitation


     4
          See Jones v. United States, 527 U.S. 373, 389 (1999);
United States v. Williams, 264 F.3d 561, 574 (5th Cir. 2001);
United States v. Gonzalez, 250 F.3d 923, 930 n. 10 (5th Cir. 2001).
     5
          United States v. Olano, 507 U.S. 725, 732 (1993)
(internal citations omitted; see also Gonzalez, 250 F.3d at 930 n.
10 (internal citations omitted).

                                  -4-
period shall run from the latest 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.”6        The respondent

concedes that a conviction is not “final” for purposes of Texas

law until the mandate is issued.7        However, respondent maintains

that this designation is not controlling for purposes of

calculating the statute of limitations under the AEDPA.        In

Caspari v. Bohlen,8 the Supreme Court analyzed the finality of a

conviction for purposes of determining retroactivity under Teague

v. Lane.9   The Court held that a conviction becomes final “when

the availability of direct appeal to the state courts has been

exhausted and the time for filing a petition for a writ of

certiorari has elapsed or a timely filed petition has been

finally denied.”10   Moreover, in Flanagan v. Johnson, this court

held that, based on Caspari, a Texas prisoner’s conviction became

final for AEDPA purposes 90 days after the Texas Court of

Criminal Appeals denied his petition for discretionary review,

when time expired for him to seek a writ of certiorari from the




     6
            28 U.S.C. § 2244(d)(1)-(d)(1)(A).
     7
            See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App.
2000).
     8
            510 U.S. 383, 390 (1994).
     9
            489 U.S. 288 (1989).
     10
            510 U.S. at 390.

                                   -5-
United States Supreme Court.11

     In addition, at least one circuit has rejected the position

that Vanduren advances here.     In Wixom v. Washington, the Ninth

Circuit held that a decision terminating review, not the issuance

of the mandate, signifies “the conclusion of direct review” that

triggers the AEDPA’s limitation period.12    The Ninth Circuit

noted that even though Washington state courts consider a

conviction to be “final” only upon issuance of the mandate for

purposes of state law, the Ninth Circuit was bound by Congress’

definition of the term in calculating the statute of limitations

under the AEDPA.13   Petitioner cites no authority that supports

his proposition that the AEDPA’s statute of limitations does not

begin to run until mandate is issued.

     In light of these authorities, it is far from “obvious” that

the issuance of the mandate determines when a conviction becomes

final for purposes of 28 U.S.C. § 2244(d)(1)(A), thereby

triggering the one year limitations period.    Thus, the district

court’s decision that the limitations period began to run on

March 14, 1998, when time expired for Vanduren to seek direct

review of his conviction, was not an obvious error, if erroneous

at all.


     11
          154 F.3d 196, 197 (5th Cir. 1998).
     12
          264 F.3d 894, 897-98 (9th Cir. 2001).
     13
          Id. at 898 n. 3.

                                  -6-
     Therefore, we AFFIRM the district court’s dismissal of

Vanduren’s § 2254 petition.




                               -7-
