     Case: 19-40131       Document: 00515413411         Page: 1     Date Filed: 05/12/2020




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


                                     No. 19-40131
                                                                                    FILED
                                                                                May 12, 2020
                                   Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
JEFFREY W. ENGLE,

                                                  Petitioner - Appellant

v.

LORIE DAVIS, 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. 4:18-CV-487


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Proceeding pro se and in forma pauperis, Jeffrey W. Engle, Texas
prisoner # 2070022, challenges the dismissal of his 28 U.S.C. § 2254 habeas
petition as time-barred. Our court granted a certificate of appealability based
on Engle’s contention that the district court, adopting a magistrate judge’s
report and recommendation, erroneously calculated the date on which his



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-40131

state-court judgment of conviction became final, pursuant to 28 U.S.C.
§ 2244(d)(1)(A).   In addition, our court granted respondent’s motion to
supplement the record on appeal with state trial-court records that corroborate
Engle’s claim, but which were not made available to the district court.
(Although not controlling, respondent now concedes Engle’s § 2254 petition
was timely, in the light of the supplemented record.)
      A district-court’s ruling on whether a § 2254 petition is time-barred is
reviewed de novo. E.g., Butler v. Cain, 533 F.3d 314, 316 (5th Cir. 2008)
(citation omitted). In that regard, supplemental state-court records, provided
for the first time on appeal, may be considered. See Johnson v. Dretke, 442
F.3d 901, 906 n.3 (5th Cir. 2006).
      State prisoners filing petitions pursuant to § 2254 are subject to a one-
year limitations period running from “the latest of” several dates, including, as
relevant in this instance, “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. § 2244(d)(1)(A). Pursuant to the Texas Rules of Appellate
Procedure, a criminal defendant’s notice of appeal ordinarily “must be filed
within 30 days after the day sentence is imposed”. Tex. R. App. P. 26.2(a)(1).
If, however, “defendant timely files a motion for new trial”, the deadline to file
a notice of appeal is extended to 90 days. Id. 26.2(a)(2).
      The district court concluded that Engle’s state-court judgment became
final, for purposes of his federal petition’s timeliness pursuant to
§ 2244(d)(1)(A), 30 days after Engle’s sentence was imposed because his
subsequent notice of appeal was not timely filed. See id. 26.2(a)(1); Scott v.
Johnson, 227 F.3d 260, 262 (5th Cir. 2000). In the light of the supplemented
record on appeal, however, Engle is correct that he timely filed a pro se motion




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                                  No. 19-40131

for a new trial. Accordingly, his pro se notice of appeal was timely filed within
90 days after the sentence was imposed. See Tex. R. App. P. 26.2(a)(2).
      Engle’s judgment therefore became final, for purposes of § 2244(d)(1)(A),
only when the time for seeking direct review of the Texas Court of Appeals’
judgment dismissing his appeal, Engle v. State, No. 02-16-321-CR, 2016 WL
5220072 (Tex. Ct. App. 22 Sept. 2016), expired upon his failure to file a timely
petition for discretionary review, with the Texas Court of Criminal Appeals,
see Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). He subsequently
properly filed a pro se state application for a writ of habeas corpus, which,
although denied, tolled the limitations period, as discussed infra. Ex parte
Engle, No. WR-48,273-02 (Tex. Crim. App. 11 Apr. 2018).
      Based on that later date of finality, and our recalculation of the
limitations period to account for the time during which Engle’s properly filed
pro se state application for a writ of habeas corpus was pending, his pro se
§ 2254 petition was timely filed. See 28 U.S.C. §§ 2244(d)(1)(A) (quoted in
relevant part supra), (d)(2) (tolling federal filing deadline while “properly filed
application for State post-conviction . . . review with respect to the pertinent
judgment or claim is pending”).
      VACATED; REMANDED for further proceedings consistent with this
opinion.




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