                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                                            In the                                  January 10, 2005
                      United States Court of Appeals                            Charles R. Fulbruge III
                                  for the Fifth Circuit                                 Clerk
                                       _______________

                                         m 03-21139
                                       _______________




                                  MARK DAVID GODFREY,

                                                           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 Southern District of Texas
                               _________________________




Before HIGGINBOTHAM, SMITH, and                    tions”). In December 2000 he filed a state
  BENAVIDES, Circuit Judges.                       application for postconviction relief, alleging
                                                   that the 1998 conviction was erroneously
JERRY E. SMITH, Circuit Judge:                     enhanced by the expired convictions. The
                                                   Texas Court of Criminal Appeals (“TCCA”)
    In 1998, Mark Godfrey was convicted of         rejected that application. In October 2001
burglary of a habitation and was sentenced to      Godfrey filed two more state applications for
fifty years’ imprisonment. His sentence was        postconviction relief alleging the same
enhanced by expired convictions from 1982          deficiencies as in his December 2000 applica-
and 1991 (together, the “expired convic-           tion but styling the new applications as direct
attacks on the 1982 and 1991 convictions.                 2000 application.
The TCCA rejected these petitions as well.
                                                          •October 26, 2001: Godfrey filed two state
    Godfrey filed the instant petition under 28           postconviction applications directly chal-
U.S.C. § 2254 in April 2002. The district                 lenging validity of 1982 and 1991 convic-
court found his federal petition to be                    tions.
time-barred, reasoning that his October 2001
petitions had not tolled the applicable statute           •January 25, 2002: Statute of limitations
of limitations under the Antiterrorism and                expired (as determined by district court).
Effective Death Penalty Act of 1996
(“AEDPA”). The court decided, however,                    •February 6, 2002: TCCA denied October
that the issue is debatable and issued a cer-             2001 state postconviction applications.
tificate of appealability (“COA”) on the tolling
question.                                                 •April 28, 2002: Godfrey filed the instant
                                                          § 2254 petition challenging 1998 burglary
                       I.                                 conviction and sentence.
                      A.
   The following is a chronology of important                                B.
events beginning with Godfrey’s 1998 convic-              In his December 2000, application for post-
tion (the “current conviction”):                       conviction relief, Godfrey argued that his sen-
                                                       tence had been erroneously enhanced by in-
   •October 14, 1998: Convicted of burglary            valid convictions.1 The TCCA denied the
   of a habitation.                                    application on June 13, 2001. One hundred
                                                       seventy-seven days elapsed between the filing
   •December 16, 1999: Current conviction              and the denial.
   and sentence affirmed on direct appeal.

   •May 3, 2000: TCCA refused petition for
   discretionary review of the current con-               1
                                                             Specifically, Godfrey sought postconviction
   viction.                                            relief alleging, with respect to his 1982 conviction,
                                                       that he had been sentenced to five years’ probation
   •August 1, 2000: Conviction became final            and that his 1988 revocation hearing was outside
   by expiration of 90-day period to petition          the five-year probationary period. Therefore, he
   for writ of certiorari (as found by district        argued, under Texas law the conviction was not
   court).                                             final and could not be used for enhancement
                                                       purposes. He also contended that the revocation
                                                       was invalid because his counsel was absent during
   •December 18, 2000: Godfrey filed single
                                                       the revocation hearing.
   state application for postconviction relief
   challenging expired convictions insofar as              Godfrey argued that his 1991 conviction was
   they were used to enhance current convic-           invalid because his appointed counsel failed to ap-
   tion.                                               pear at the preliminary hearing and plea negotia-
                                                       tions with the prosecutor, the latter of which God-
   •June 6, 2001: TCCA denied December                 frey avers resulted in an uncounseled plea
                                                       agreement.

                                                   2
    On October 26, 2001, Godfrey filed two              on expired convictions used to enhance current
state postconviction applications challenging           sentences generally do not state a cognizable
the expired convictions directly. The sub-              claim in § 2254 proceedings where the state
stance of the challenges were identical to those        challenges to the expired convictions are
articulated in Godfrey’s challenge to the use of        themselves time-barred. The major exception
the two convictions for enhancement. The                to that rule involves cases in which the habeas
TCCA rejected these applications on February            application alleges a failure to appoint counsel.
6, 2001. One hundred five days elapsed                  Deciding that Godfrey did not fit under the
between the filing and the rejection.                   exception, the court determined that he could
                                                        not collaterally attack the expired convictions
   On April 28, 2002, Godfrey filed the instant         in a § 2254 proceeding. Based on that
§ 2254 petition, challenging the sentence               reasoning, the court then opined that
associated with the current conviction, arguing         Godfrey’s state postconviction applications
(1) that the trial court had erroneously consid-        challenging the expired convictions did not toll
ered the expired convictions because the state          limitations under § 2244(d)(2) because they
did not notify him of its intent to introduce           were not challenges to the “pertinent judgment
them; (2) that the state court erroneously used         or claim.”
the convictions to enhance his sentence (for
the same reasons he stated in his state applica-                                II.
tion for postconviction relief); and (3) that he            Section 2244(d)(2) provides that “[t]he
received ineffective assistance of trial counsel.       time during which a properly filed application
The state moved for summary judgment,                   for State postconviction or other collateral
alleging that the petition was time-barred.             review with respect to the pertinent judgment
                                                        or claim is pending shall not be counted to-
   The district court agreed, determining that          ward any period of limitation.” The funda-
because Godfrey’s 1998 conviction had be-               mental issue is whether Godfrey’s two Octo-
come final on August 1, 2000, and because his           ber 2001 state postconviction applications
state postconviction application tolled the             tolled the limitations period for filing a § 2254
limitations period for 177 days, his petition           petition regarding his current conviction. If
was untimely as of January 25, 2002. It there-          they did, Godfrey’s April 2002 federal habeas
fore rejected his April 2002 § 2254 petition.           petition challenging his 1998 conviction was
                                                        timely; if they did not, his petition was
   Godfrey filed a FED. R. CIV. P. 59(e) mo-            time-barred under § 2244(d)(2).
tion to arrest judgment, arguing that his Octo-
ber 2001 applications challenging the expired              As a preliminary matter, we divide our
convictions should have tolled limitations and          analysis into three components: (1) the juris-
that his April 2002 § 2254 petition was not             dictional component, i.e., whether Godfrey
time-barred. The district court rejected this           was “in custody” for purposes of federal
argument.                                               habeas jurisdiction; (2) whether his state
                                                        petition states a cognizable claim under §
  The district court relied on Lackawanna               2254; and (3) the limitations statute’s tolling
County Dist. Attorney v. Coss, 532 U.S. 394,            requirements. The primary focus is the third
401-02 (2001), for the proposition that attacks


                                                    3
component.2                                                 Larry v. Dretke, 361 F.3d 890, 893 (5th Cir.),
                                                            cert. denied, 125 S. Ct. 141 (2004). Accord-
                      A.                                    ing the state petitions some level of judicial
   The state does not challenge federal juris-              review, the TCCA exercised jurisdiction
diction over Godfrey’s application. In Maleng               sufficient to qualify Godfrey’s state applica-
v. Cook, 490 U.S. 488, 490-91 (1989), the                   tions as “properly filed” under the
Court held that § 2254’s “in custody” require-              § 2244(d)(2) requirement.4
ment is satisfied when a habeas petitioner
attacks an expired conviction used to enhance                                      III.
his current punishment if the § 2254 petition                  Regarding the denial of habeas relief, the
can be read as a challenge to the current con-              district court’s findings of fact are reviewed
viction.3                                                   for clear error and issues of law de novo.
                                                            Moody v. Johnson, 139 F.3d 477, 480 (5th
                        B.                                  Cir. 1998).
   Section 2244(d)(2) provides for tolling                  Section 2244(d)(2) states that “[t]he time
during the pendency of a properly filed appli-              during which a properly filed application for
cation for state postconviction relief with                 State postconviction or other collateral review
respect to the pertinent judgment or claim. A               with respect to the pertinent judgment or
state application is “properly filed” if it meets           claim is pending shall not be counted toward
certain formal requirements and if the court in             any period of limitation” (emphasis added).
which it is filed has jurisdiction to consider it.
See Artuz v. Bennett, 531 U.S. 4, 9-10 (2000);                                    A.
                                                               The district court correctly observed that,
                                                            although federal courts may exercise jurisdic-
   2                                                        tion over habeas petitions that attack expired
      We address only the tolling question. The dis-
trict court granted a COA that actually raises six          convictions used to enhance a sentence, the
issues, but given that the entirety of the court’s          Supreme Court has said that they generally do
opinion seems to concern the tolling issue, we infer        not state a cognizable legal claim. See Coss,
(and it seems clear from the briefs) that it meant to       532 U.S. at 402. The Court has recognized an
grant a COA on that issue alone.                            exception where the conviction “was obtained
                                                            [because of] a failure to appoint counsel in
   3
      Maleng, however, left open the question of            violation of the Sixth Amendment,” as set
“the extent to which the [prior expired] conviction         forth in Gideon v. Wainwright, 372 U.S. 335
itself may be subject to challenge in the attack            (1963). See Coss, 532 U.S. at 404. In those
upon the [current] senten[ce] which it was used to
enhance.” Maleng, 490 U.S. at 484. The Maleng
Court therefore noted explicitly the distinction
                                                               4
between the inquiry surrounding whether the “in                  The applications were denied without written
custody” requirement is satisfied and the inquiry           order, indicating that they were “accorded some
surrounding whether the petitioner can state a cog-         level of judicial review” by the TCCA. See Jack-
nizable claim. This is not the same operative               son v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998)
distinction creating confusion in this case, but it         (observing that in Texas writ jurisprudence, a de-
underscores the need to distinguish between the             nial of relief instead of a dismissal by the TCCA
cognizability requirements and other components of          disposes of the merits of the claim); Ex Parte Tor-
the tolling statute.                                        res, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).

                                                        4
instances, the petitioner may attack the expired                 Although the COA did not issue for this
conviction used to enhance a current one                     question, the district court was correct in
irrespective of whether the expired conviction               determining that Godfrey’s state petition did
remains open to direct or collateral attack.                 not fit within the Coss exception for purposes
                                                             of determining legal cognizability. Where the
    The question whether Godfrey may state a                 enhanced conviction is obtained after failure to
cognizable claim under § 2254, however, is                   appoint counsel in violation of the Sixth
distinct from the issue of tolling. The question             Amendment,6 the petitioner may attack the
in this appeal is whether Godfrey’s October                  enhanced sentence irrespective of the status of
2001 state habeas applications tolled the                    convictions used to enhance it. Godfrey
statute of limitations under § 2244(d)(2). The               basically alleges that his plea of nolo conten-
district court seems to have conflated the two               dere in the 1991 conviction) and his probation
inquiries, reasoning that, because Godfrey                   revocation in the 1982 conviction) were
failed to demonstrate that he was without                    uncounseled. The district court adequately
counsel during proceedings associated with the               explained why Godfrey does not qualify for
expired convictions, his state petitions                     the Coss exception, but the cognizability issue
attacking the expired convictions did not toll               is not before us now.
limitations for his federal petition.5
                                                                                    B.
   5
                                                                Section 2244(d)(2)provides that “[t]he time
      Essentially, the district court determined that        during which a properly filed application for
because Godfrey’s October 2001 applications did              State post-conviction or other collateral re-
not state cognizable § 2254 claims, they could not
                                                             view with respect to the pertinent judgment or
toll the § 2244(d)(2) statute of limitations. There
                                                             claim is pending shall not be counted toward
appears to be no Fifth Circuit authority on this is-
sue, but that reasoning appears both (1) coun-               any period of limitation.” The important issue
ter-intuitive, given that it would render the statute        is whether Godfrey’s October 2001 state
of limitations inquiry entirely redundant of a merits        habeas applications challenging the expired
inquiry, and (2) counter to the law of other circuits.       convictions constitute attacks on the “pertinent
                                                             judgment or claim,” namely the 1998
    Other courts of appeals have found that a state          conviction that the two expired convictions
application attacking expired convictions insofar as         were used to enhance. On no occasion has
they are used for enhancement purposes satisfies             this court had to parse carefully the relevant
the “pertinent judgment” component of the tolling            phraseology and decide what, for purposes of
inquiry. See, e.g., Ford v. Moore, 296 F.3d 1035,            2244(d)(2), constitutes a pertinent judgment
1038, 1040 (11th Cir. 2002) (tolling limitations             and what constitutes a pertinent claim.
period regardless of whether properly filed state
application raised a federally cognizable claim);
Sweger v. Chesney, 294 F.3d 506, 509 (3d Cir.
2002) (tolling limitations period during pendency               5
                                                                  (...continued)
of state postconviction application regardless of the        even if the particular application does not include
claims raised therein); Tillema v. Long, 253 F.3d            a claim later asserted in the federal habeas
494, 502 (9th Cir. 2001) (stating that the “period           petition”).
of limitation is tolled during the pendency of a state
                                                                6
application challenging the pertinent judgment,                   This determination is made pursuant to Gid-
                                       (continued...)        eon, 372 U.S. at 335.

                                                         5
    Godfrey argues that Dilworth v. Johnson,               lenge his current conviction—the subject of his
215 F.3d 497 (5th Cir. 2000), controls the                 § 2254 petition. The text of his federal
tolling issue. That case dealt with a similar              petition incorporates claims from his Decem-
situation, where the federal petitioner chal-              ber 2000 state habeas application challenging
lenged, in a state writ application, a conviction          the expired convictions used for enhancement
that was used to enhance the current convic-               purposes.
tion. The Dilworth court, id. at 501, found
that a state application challenging enhancing                 On the facts of this case, Godfrey’s October
convictions tolled the limitations period for              2001 applications also did not challenge a
filing a federal petition challenging the current          pertinent judgment for tolling purposes. Our
conviction. The Dilworth petitioner both (1)               decision in this regard is, however, quite
plainly stated in his state applications that he           limited. We so decide only because, on the
was challenging the prior conviction insofar as            instant facts, it is impossible to construe God-
it was being used to enhance his current one               frey’s October 2001 state petitions as chal-
and (2) raised the same claims in his state and            lenging the enhanced conviction. In Dilworth,
federal petitions. Id.                                     215 F.3d at 501, the court construed the pe-
                                                           titioner’s state applications as challenges to the
    We decline Godfrey’s invitation to equate              expired convictions insofar as they questioned
the set of facts with those in Dilworth, and we            the current conviction in spite of cosmetic
instead rely on an alternative rationale in                wording to the contrary. We did so because
affirming.7 The Dilworth petitioner’s state                we were “unpersuaded that these minor
habeas application alleged that he received                differences warrant the conclusion that Dil-
ineffective assistance of counsel with respect             worth’s state habeas application was not . . .
to his expired conviction. That court stated               [properly filed] pursuant to section 2244-
that “[c]ommon sense dictates that Dilworth’s              (d)(2).” Id. It is worth noting that the Dil-
second state habeas conviction challenged a                worth court’s inquiry focused on whether the
‘pertinent judgment or claim’ under the plain              application was “properly filed” and not on
language of Section 2244(d)(2).”                           whether it challenged a pertinent judgment or
                                                           claim; but the fact that we held the state appli-
   Neither of Godfrey’s October 2001 state                 cation to toll limitations suggests that, at least
postconviction applications purports to chal-              implicitly, we thought that the application in-
                                                           deed made such a challenge.
   7
      The state encourages us to refuse to treat              Godfrey, on the other hand, filed a habeas
Dilworth as controlling, but for a different reason.       petition in December 2000 challenging the fact
The state urges that Coss overrules Dilworth. For          that his 1998 sentence had been inappro-
the reasons discussed above, Coss deals with
                                                           priately enhanced by invalid convictions. His
whether a state petition must include a cognizable
federal claim, not whether such a claim (or failure
                                                           October 2001 postconviction applications
to make it) in a state petition tolls the applicable       challenged those convictions themselves. We
statute of limitations. The state devotes consider-        cannot construe the October 2001 applica-
able time attempting to re-cast Coss’s ruling on a         tions as the Dilworth court construed the
petitioner’s ability to state cognizable claims as a       applications before it. Because Godfrey filed
ruling on the types of state post-conviction pro-          an application challenging the expired convic-
cedures that toll limitations.

                                                       6
tions for enhancement purposes in December                  Cir. 2002). We nonetheless decline to find
2000, we cannot interpret the October 2001                  Godfrey’s October 2001 state applications to
application as making precisely the same                    be challenges to the “pertinent claim,” but we
attack. For those reasons we must construe                  distinguish the instant facts from those in
the application as challenging different judg-              Smith.
ments (the expired convictions),8 and, for
reasons we explain, prudence counsels against                  Our decision is narrow, however, and
interpreting those applications as challenges to            should not be interpreted categorically to
a pertinent claim.                                          time-bar all challenges to expired state convic-
                                                            tions as beyond the “pertinent claim” language
                      C.                                    of § 2244(d)(2). We instead limit our reason-
   The remaining, and indeed most important,                ing to situations, such as here, in which the
inquiry, then, is whether Godfrey’s state                   petitioner previously submitted a prior state
petitions qualify as challenging a “pertinent               postconviction application (attacking the cur-
claim” under § 2244(d)(2). Again, Dilworth                  rent conviction) making precisely the same
does not control, because that petitioner’s                 substantive claims that he makes in his current
state claims were construed as attacking an                 ones (attacking the expired convictions).9 In
enhancement of the current conviction rather                Smith, the petitioner did not submit multiple
than the expired ones themselves. The Dil-                  state petitions making the same underlying
worth court noted that the state petitions                  substantive claims. See id. at 811-12.
obviously challenged a pertinent judgment, and
the court made no attempt to determine                          Allowing the limitations period to toll in
whether they also challenged a pertinent claim.             these sorts of situations would encourage
See id. That is the task before us here.                    defendants to make entirely redundant argu-
                                                            ments in state court, styled in the first effort as
   At least one circuit has found that an appli-            attacks on expired convictions insofar as they
cation relating to an expired state sentence                are used to enhance a current sentence and, on
used to enhance a current conviction consti-                the second, as attacks on the expired convic-
tutes a “pertinent claim” for tolling purposes.             tions directly. Under Godfrey’s theory, the
See Smith v. Duncan, 297 F.3d 809, 814 (9th                 more enhancing convictions a petitioner has,
                                                            the more tolling time he can accumulate before
                                                            filing a federal petition. Habitual criminals
   8
     In the cases previously cited discussing tolling
status where the petitioner advanced a non-cog-
nizable legal claim (see note 5, supra), all of the
                                                               9
state applications attacked the same judgment at-                Attacks on expired convictions may be cap-
tacked in the federal petitions. The facts of this          able of tolling the limitations period, but only
case, however, cannot support such an interpre-             where a court may construe those applications as
tation of Godfrey’s October 2001 state applica-             raising a pertinent claim. Here, where Godfrey’s
tions. That logical leap is always achieved by con-         October 2001 applications made precisely the same
struing the state applications regarding expired            arguments that his December 2000 applications
convictions as challenges to enhanced current ones.         did, and where the December 2000 applications
In light of his December 2000 postconviction                were styled as an attack on the expired convictions
application, however, Godfrey’s petition can bear           insofar as they were used to enhance Godfrey’s
no such interpretation.                                     sentence, tolling should not be allowed.

                                                        7
would enjoy a dramatic advantage over                       AFFIRMED.
first-time offenders in the sense that they
would have more enhancing convictions
available to toll limitations under § 2244-
(d)(2). Although such considerations may
justify a more sweeping ruling—that state
postconviction proceedings challenging ex-
pired convictions should not toll limitations
under any circumstances—at this time we
merely adopt the more limited rationale gov-
erning situations in which the validity of the
expired convictions has already been attacked
in a state post conviction objection to the
enhanced sentence.

                       IV.
    Godfrey argues that because Coss was
decided after he sought state postconviction
relief, it should not be retroactively applied to
him in a manner that he alleges violates the Ex
Post Facto Clause. This argument is unavail-
ing on several fronts, but we nonetheless
decline to reach it on the merits.10

   We need not rely on the retroactive appli-
cation of Coss to rule that Godfrey’s § 2254
petition is time-barred. We instead rely on
analysis articulated in part III, supra, that
Godfrey’s October 2001 state applications did
not challenge a “pertinent judgment or claim”
within the meaning of § 2244(d)(2).

   10
      The ex post facto claim is frivolous. For an
ex post facto violation to occur, a new law must
create a sufficient risk of increasing the punishment
attached to the crimes. See Warren v. Miles, 230
F.3d 688, 692 (5th Cir. 2000). Coss did not
announce a new law that increased Godfrey’s
punishment for his burglary conviction. Of course,
one could reason that the expected value of his sen-
tence increased as a result of the Coss presumption
against challenges to sentences enhanced on the
basis of expired convictions, but that connection is
far too attenuated to merit endorsement here.

                                                        8
