     Case: 11-40551     Document: 00511926447         Page: 1     Date Filed: 07/19/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 19, 2012
                                     No. 11-40551
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DANIEL C. SANFORD,

                                                  Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:09-CV-190


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Daniel C. Sanford, Texas prisoner # 344861, is serving time for a 1982
aggravated robbery conviction. He appeals the dismissal of his 28 U.S.C. § 2254
application challenging the revocation of his parole on February 27, 2007, based
in part on a 1996 federal conviction for bank fraud. We granted a certificate of
appealability (COA) for the issue of whether “Texas waived its jurisdiction to
revoke his parole on the basis of his 1996 bank fraud offense.”


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40551

      Sanford argues that his revocation hearing was untimely following his
initial arrest on a fugitive from justice warrant. He also argues that his arrest
on December 13, 2006, violated due process because the fugitive from justice
warrant had expired. We will not consider these issues that are beyond the
scope of the COA. See Simmons v. Epps, 654 F.3d 526, 535 (5th Cir. 2011), cert.
denied, 2012 WL 1658531 (May 14, 2012) (No. 11-8085).
      According to the respondent, Sanford’s § 2254 application was time barred
under 28 U.S.C. § 2244(d)(1). Although both parties addressed the time bar
issue in the district court, the court dismissed the application on the merits
without reaching the statute of limitations. Because Sanford had notice of the
issue and an opportunity to respond, and the respondent has not waived the
affirmative defense, we will consider in the first instance whether Sanford’s
application was time barred. See Scott v. Johnson, 227 F.3d 260, 262-63 (5th
Cir. 2000).
      A person in state custody has one year in which to file a timely application
for federal habeas corpus relief. § 2244(d)(1). Because Sanford is challenging a
parole revocation decision, the limitation period began to run on “the date on
which the factual predicate of the claim . . . presented could have been
discovered through the exercise of due diligence.” § 2244(d)(1)(D); see Redd v.
McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003) (applying § 2244(d)(1)(D) to parole
denial claim with time running from date of parole decision); Wade v. Robinson,
327 F.3d 328, 333 (4th Cir. 2003) (same with respect to parole revocation); Cook
v. New York State Div. of Parole, 321 F.3d 274, 280 (2d Cir. 2003) (same).
      The factual predicate for the claim that Texas waived its jurisdiction to
revoke Sanford’s parole based upon the 1996 conviction was discoverable on the
date his parole was revoked, February 27, 2007. Sanford did not file his federal
application until April 25, 2009. Even if we assume that the limitation period
was tolled pursuant to § 2244(d)(2) during the pendency of Sanford’s first state
habeas application from April 25, 2007, to October 3, 2007, more than one year

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                                No. 11-40551

passed before Sanford filed his second state habeas application on October 8,
2008. Sanford has not shown that he is entitled to equitable tolling.
      Because the district court’s dismissal can be affirmed on limitations
grounds, we need not consider the merits of the certified issue. The judgment
of the district court is AFFIRMED.




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