  Case: 08-11010   Document: 00511195114    Page: 1   Date Filed: 08/05/2010




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

                                               FILED
                                                               August 5, 2010

                                                               Lyle W. Cayce
                                                                    Clerk
                               No. 08-11010


THOMAS JEFFREY STONE,

                                         Petitioner-Appellant,

versus

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                         Respondent-Appellee.




                Appeal from the United States District Court
                     for the Northern District of Texas
                             No. 3:07-CV-1657




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                                 No. 09-40028


THOMAS JEFFREY STONE,

                                            Petitioner-Appellant,

versus

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
                               No. 4:07-CV-51




Before SMITH, WIENER, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Thomas Stone, Texas prisoner #671904, appeals the dismissals, as time-
barred, of his federal petitions for writs of habeas corpus. We vacate those dis-
missals and remand for further proceedings.


                                       I.
      Stone was convicted in 1994 of robbery in Dallas County and Collin Coun-
ty, Texas, and was sentenced to concurrent twenty-five-year terms of imprison-
ment. He was released to parole in January 2003, but that parole was revoked
in November 2004.
      On May 3, 2005, Stone filed a time-credit dispute-resolution request

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(“TDR”), pursuant to section 501.0081 of the Texas Government Code, complain-
ing of errors in the calculation of his time-earning status, parole date, and pro-
jected release date. On February 23, 2006, the Texas Department of Criminal
Justice issued a written decision finding no error. Stone filed another TDR on
May 10, 2006, which was denied nearly a year later.
      On July 31, 2006, Stone filed a state habeas application challenging his pa-
role revocation and the calculation of his time-served credit. On January 29,
2007, while his state application was pending, he filed a federal habeas applica-
tion in the Eastern District of Texas on the same grounds. On September 12,
2007, Stone’s state habeas application was denied. He then filed two more fed-
eral habeas applications1 challenging his time-served credit in the Northern Dis-
trict of Texas on September 24, 2007.
      Both district courts dismissed the habeas applications as time-barred, and
Stone appealed the dismissals. This court consolidated the two appeals and
granted a Certificate of Appealability (“COA”) to determine whether the federal
limitations period was statutorily or equitably tolled during the pendency of
Stone’s time-served credit disputes.


                                             II.
      Issues of law in a habeas appeal are reviewed de novo. See Richardson v.
Joslin, 501 F.3d 415, 417 (5th Cir. 2007). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), there is a one-year limitations period for
federal petitions brought by state prisoners. 28 U.S.C. § 2244(d)(1). Subsection
2244(d)(1)(D) governs the timeliness of claims predicated on parole decisions.
See Goodwin v. Dretke, 118 F. App’x 817, 818 (5th Cir. 2004). The limitations
period begins on “the date on which the factual predicate of the claim or claims

      1
          Those two applications were subsequently consolidated by the district court.

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presented could have been discovered through the exercise of due diligence.”
§ 2244(d)(1)(D). Section 2244(d)(2) provides that “[t]he time during which a
properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted to-
ward any period of limitation under this subsection.” We review the denial of
equitable tolling only for abuse of discretion. Fisher v. Johnson, 174 F.3d 710,
713 (5th Cir. 1999).


                                        III.
                                        A.
      Stone claims that the AEDPA limitations period was statutorily tolled dur-
ing the pendency of his TDR’s. Although this court has not squarely addressed
whether filing a TDR tolls limitations, we are not without guidance. In Wion v.
Quarterman, 567 F.3d 146, 148 (5th Cir. 2009), cert. denied, 130 S. Ct. 1120
(2010), we held that a petition for special review of a parole denial does not toll
limitations, because special review does not have “any effect on a potential
habeas petition.” Id. The Wion court specifically contrasted special review with
the procedure for disputing time-served credit under section 501.0081. Id. Un-
der that section, prisoners are required to seek administrative review of their
time-credit disputes by filing a TDR before filing a state habeas application.
After filing a TDR, prisoners are then prohibited from filing for state habeas re-
lief until they receive a written decision or until 180 days elapse, whichever
comes first. T EX. G OV’T C ODE § 501.0081(b)(1)-(2).
      Although Wion did not hold that filing a TDR tolls limitations, the court’s
reasoning entails that conclusion. Texas law does not require prisoners to apply
for special review of a parole decision, and those applications have no effect on
the ability to file for state habeas relief. Because special review presents no im-


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pediment to applying for state habeas relief, the Wion court held that there is no
justification for tolling the AEDPA limitations period. Texas law does, however,
require prisoners disputing time-served credit to file a TDR and wait until they
receive a written decision or until 180 days elapse before filing a state habeas
application. A modest extension of Wion’s reasoning leads to the conclusion that
filing a TDR impedes a prisoner’s ability to file for state habeas relief, so AEDPA
limitations was tolled during Stone’s time-served credit dispute.
      Two subsidiary issues remain in determining the length of the tolling peri-
od on Stone’s claim. The first is whether the limitations period was tolled for the
entire time Stone’s first TDR was pending. The second is whether his subse-
quent TDR had any effect on the limitations period.
      Stone contends that his first TDR tolled limitations until he received a
written decision in February 2006. Conversely, the state argues that limitations
should be tolled only a maximum of 180 days. We agree with the state. Al-
though Stone did not receive a written decision on his TDR for more than eight
months, he was free to file a state habeas application after 180 days. After the
impediment to his state habeas application had been removed, there was no rea-
son to continue tolling. Therefore, the limitations period was tolled for only 180
days after Stone filed his first TDR.
      Stone also claims that limitations was tolled after he filed his second TDR
in May 2006. We disagree. Stone was not required to file a second TDR before
applying for state habeas relief and was not prohibited from making that appli-
cation during its pendency. The second TDR, therefore, did not toll the limita-
tions period.


                                        B.
      Stone argues in the alternative that limitations should be equitably tolled.


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Because we conclude that he is entitled to 180 days of statutory tolling, we ad-
dress only whether he was entitled to equitable tolling in excess of that.
       “[A] petitioner is entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circum-
stance stood in his way and prevented timely filing.” Holland v. Florida, 130 S.
Ct. 2549, 2562 (2010) (internal citation and quotation marks omitted). We have
already held that Stone’s TDR created a statutory impediment to filing a state
habeas application and that the impediment dissolved after 180 days had
elapsed. Because Stone was not required to file a second TDR, and because the
record reveals no other “extraordinary circumstance,” Stone is not entitled to
equitable tolling.


                                             IV.
       The district courts erred in holding that Stone was not entitled to statu-
tory tolling during the pendency of his first TDR. We therefore VACATE the
dismissals of his federal habeas claims. Although the limitations period was
tolled for 180 days, we decline to resolve whether Stone’s federal habeas peti-
tions were timely. The district courts identified two different dates on which the
limitation period commencedSSone that would render the petitions timely and
one that would render them time-barred.2 Because the COA does not authorize
us to resolve that issue, we VACATE and REMAND to the respective district
courts for further proceedings consistent with this opinion. We intimate no view
on what decisions should be made on remand.




       2
        The United States District Court for the Eastern District of Texas found that the limi-
tations period commenced on October 14, 2004. The United States District Court for the
Northern District of Texas, however, assumed that it began on March 22, 2005.

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