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

                                                 FILED
                                                                            July 29, 2009

                                       No. 07-10424                    Charles R. Fulbruge III
                                                                               Clerk

GILBERTO D. HERNANDEZ

                                                   Petitioner - Appellant
v.

NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 06-CV-69


Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
WIENER, Circuit Judge:*
       Petitioner-Appellant Gilberto Hernandez was sentenced to two consecutive
terms of imprisonment. He contends that he had a legitimate expectation in the
finality of his sentences which Texas, through Respondent-Appellee Nathaniel
Quarterman, has frustrated by changing the method it used to calculate the way
that his sentences would be served. This, Hernandez claims, entitles him to



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                        No. 07-10424

relief under the Double Jeopardy Clause of the Constitution. On the record
before us, we are not able to resolve this claim, so we remand for the discovery
and the evidentiary hearing that Hernandez requested and the district court
denied.
                           I. FACTS AND BACKGROUND
       Hernandez committed aggravated robbery on March 30, 1986 in Hale
County, Texas.        On July 1, 1986, he pleaded guilty and was sentenced to
eighteen years imprisonment (“sentence #1”). While in prison serving sentence
#1, Hernandez committed attempted murder on May 2, 1988. For that offense,
he was sentenced on March 20, 1989 to ten years imprisonment, to run
consecutively to his sentence for aggravated robbery (“sentence #2”).1
       Taking into account various time credits, Texas calculated the begin-date
of sentence #1 as February 2, 1986. Hernandez therefore had a calculated “day-
for-day” sentence-completion date of February 2, 2004 for his aggravated robbery
conviction. At the time that he committed the aggravated robbery, however,
Texas provided for mandatory supervised release. Hernandez was therefore
eligible to be released from prison and serve the remainder of his sentence on
mandatory supervision once the total of his actual time served and good-conduct
time equaled his sentence, calculated day for day.2             Texas claims that this
occurred on December 31, 1992.3



       1
        A consecutive sentence is mandatory when, inter alia, a person commits a crime while
incarcerated in the institutional division of the Texas Department of Criminal Justice. See
TEX . CODE CRIM . P. 42.08(b) (Vernon 1985). This provision was in force at the time that
Hernandez committed both of his crimes.
       2
           TEX . CODE CRIM . P. 42.18 § 8(c) (Vernon 1985).
       3
         Although Hernandez claims that he began to serve sentence #2 on October 31, 1993,
the date we credit does not affect our conclusion. We shall use the date Hernandez advances
because it better explains the timeline. If Texas’s date is correct, it should have released
Hernandez to mandatory supervised release on December 31, 2002; but it did not.

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       Nevertheless, a 1987 change to Texas’s mandatory supervision laws made
Hernandez ineligible for release to mandatory supervision on sentence #2.4 He
was therefore required to serve sentence #2 day for day. Texas claims that
Hernandez began to serve sentence #2 when he became eligible for mandatory
supervision on sentence #1, i.e., on December 31, 1992.
       On October 31 or November 1, 2003,5 after Hernandez had served sentence
#2 day for day, Texas released him on mandatory supervision. Both parties
agree that Hernandez served sentence #2 day for day, so this release on
mandatory supervision had to have been for sentence #1. His Certificate of
Mandatory Supervision listed February 2, 2014 as its maximum expiration date,
which is the expiration date Hernandez would have had if he had been sentenced
to a single twenty-eight-year term or if Texas had tacked the remainder of
sentence #1’s mandatory-supervision term – which Texas claims was tolled from
October 31, 1993, until October 31, 2003 – onto the end of sentence #2.
       On March 6, 2004, while out on mandatory supervision, Hernandez
committed the crime of possession of a controlled substance and was sentenced
to six months imprisonment. While he was serving that sentence, the Texas
Board of Pardons and Paroles purported to revoke his supervised release for
sentence #1. Hernandez is now scheduled for release on August 23, 2014.6
       Before the district court, Hernandez claimed that, on February 2, 2004, he
had developed a legitimate expectation in the finality of his sentences because
at all relevant times Texas law specified that once a sentence commenced, it did


       4
           TEX . CODE CRIM . P. art 42.18 § 8(c) (Vernon 1988).
       5
         This is greater than ten years from December 31, 2002, but, as we explained supra
note 3, Hernandez claims that sentence #2 did not begin to operate until October 31, 1993, the
date on which sentence #1 ceased to operate, at least according to him.
       6
         Texas added six months and twenty days to the maximum expiration date listed on
Hernandez’s Certificate of Mandatory Supervision because he was “out of custody” for that
period of time.

                                                3
                                      No. 07-10424

not cease to operate.        Sentence #1 commenced on February 2, 1986, and
February 2, 2004 is eighteen years, day for day, from that commencement date.
As for sentence #2, the parties agree that, at the latest, Hernandez began to
serve it on October 31, 1993, because Texas used the date on which a prisoner
was eligible for supervised release to calculate the commencement date of
consecutive sentences. Sentence #2 was therefore served day for day on October
31, 2003, the very day on which Texas released Hernandez to supervision.
      Hernandez contends that because of Texas’s continuous operation rule, he
effectively served sentence #1 concurrently with sentence #2, even though he was
sentenced to consecutive sentences. Texas disagrees, contending that after it
“constructively released” Hernandez on mandatory supervised release for
sentence #1 – at the latest on October 31, 1993 – sentence #1 was held in
abeyance while Hernandez served sentence #2 day for day. According to Texas,
Hernandez therefore had to complete a period of supervised release for sentence
#1 that did not end until twenty-eight years after he was sentenced to eighteen
years for the underlying crime.
      After the Texas courts denied Hernandez relief, he filed two pro se
petitions for habeas corpus in federal court on May 27, 2006, asserting his
entitlement to release on the basis of the Ex Post Facto, Double Jeopardy, and
Due Process Clauses. The district court consolidated these petitions, declined
Hernandez’s request for discovery and an evidentiary hearing, and denied relief.
Hernandez then asked the district court to grant a COA, which request was
denied. He timely filed a motion with this court for a COA, which we granted for
the double jeopardy claim on March 11, 2008. After the Texas Court of Criminal
Appeals decided Ex Parte Forward,7 we appointed counsel and ordered
supplemental briefing and oral argument.



      7
          258 S.W.3d 151, 152 (Tex. Crim. App. 2008).

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                                         No. 07-10424

                                      II. DISCUSSION
A.     AEDPA’s Time Bar
       1.         Standard of Review
       We review the district court’s legal conclusions and mixed questions of law
and fact de novo, using the same standards as the district court.8 The district
court’s findings of fact are reviewed for clear error.9
       2.         Analysis
       Texas asserted before the district court that Hernandez’s petition is time-
barred under AEDPA’s one-year limitations period.10 The district court did not
reach this issue, but Texas re-urges it here as an alternative ground for
affirming. We decline to exercise our discretion to affirm on this basis, however,
finding instead that there are genuine issues of material fact as to whether
Hernandez is entitled to equitable tolling.
       “Equitable tolling is appropriate in rare and exceptional circumstances”11
because AEDPA’s “one-year limitations provision does not operate as a
jurisdictional bar.”12        When the government has “actively misled . . . the
defendant about the cause of action,” equitable tolling is appropriate.13
Assuming arguendo that Hernandez either knew or should have known the
factual predicate of his claim on the date that he received the Certificate of
Mandatory Supervised Release listing an expiration date in 2014, he also insists

       8
            Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001).
       9
            Id.
       10
            28 U.S.C. § 2244(d)(1) (2006).
       11
             Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (internal quotation marks
omitted).
       12
            Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (internal quotation marks
omitted).
       13
            Id.

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                                        No. 07-10424

— with specificity — that he was affirmatively misled by Texas about the
meaning of that 2014 date. According to Hernandez, he did not learn that he
had been misled until Texas purported to “revoke” his mandatory supervised
release. When we deduct the time during which he pursued relief in state
proceedings that tolled AEDPA’s limitations period, Hernandez filed the instant
petition less than one year after he learned that his mandatory supervised
release had been revoked. As a result, if Hernandez is entitled to equitable
tolling for the period between the time that he received the Certificate and the
time that he learned that he had been misled (if in fact he had been misled),
then his petition is timely. It is for the district court to address this argument
in the first instance on remand.
B.    Double Jeopardy
      1.         Standard of Review
      Again, we review legal questions and mixed questions of law and fact de
novo, using the same standards applied by the district court.14 Any findings of
fact are reviewed for clear error.15 A district court’s denial of discovery or an
evidentiary hearing in a habeas proceeding is reviewed for abuse of discretion.16
A district court abuses its discretion by denying discovery or an evidentiary
hearing when there “is a factual dispute which if resolved in the petitioner’s
favor, would entitle [the petitioner] to relief and the state has not afforded the
petitioner a full and fair hearing.”17
      2.         Analysis
      a.         AEDPA


      14
           Valdez, 274 F.3d at 946.
      15
           Id.
      16
           Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir. 2000).
      17
           Id. (internal quotation marks omitted) (alteration in original).

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                                       No. 07-10424

      Under AEDPA, before a petitioner is entitled to relief, he must show that
the state court decision denying relief was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.”18 A decision by a state court is
“contrary to” clearly established Supreme Court precedent when it “applies a
rule that contradicts the governing law set forth in [the Court’s] cases,” or
reaches an opposite result from a Supreme Court case with facts that are
“materially indistinguishable.” 19 A state court’s decision is an “unreasonable
application of [the] Court’s precedent if the state court identifies the correct
governing legal rule from [the] Court’s cases but unreasonably applies it to the
facts of the particular . . . case.” 20 A state court’s decision “also involves an
unreasonable application of [the] Court’s precedent if the state court either
unreasonably extends a legal principle from [the Court’s] precedent to a new
context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” 21 For this standard to be met,
the state court’s decision must be both incorrect and objectively unreasonable.22
      Section 2254(e)(2) provides that if the petitioner “has failed to develop the
factual basis of a claim in State court proceedings, the [district] court shall not
hold an evidentiary hearing on the claim” except in certain limited
circumstances.23 If a state court does not allow discovery, however, or if the



      18
           28 U.S.C. § 2254(d); Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).
      19
          Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O'Connor, J., concurring)
(announcing the opinion of the court).
      20
           Id. at 407.
      21
           Id.
      22
           Id. at 409-11.
      23
           28 U.S.C. § 2254(e)(2).

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                                        No. 07-10424

“failure to develop the factual basis is [otherwise] not directly attributable to a
decision or omission of the petitioner,” then § 2254(e)(2) does not apply and the
district court may exercise its discretion to order an evidentiary hearing or
discovery.24 Because Texas did not permit Hernandez to develop the factual
basis of his double jeopardy claim, AEDPA permits an evidentiary hearing. And
if, under the standard of review announced above, we conclude that material
facts are unresolved, the district court abused its discretion in failing to order
discovery and a hearing.
      b.         Merits
      The Double Jeopardy Clause protects two primary interests. First, it
prohibits retrial of a defendant on the same offense after acquittal or
conviction.25 That is not the type of double jeopardy claim interest that is at
issue in this case. The second interest protected is the prohibition against
multiple punishments for the same offense.26 The Supreme Court has clearly
announced the rule that a sentence adjustment that disturbs a person’s
legitimate “expectation of finality in [a] sentence” violates the prohibition
against multiple punishments.27 It would be unreasonable to conclude that a
double-jeopardy violation has not occurred if: (1) a prisoner legitimately, i.e.,
reasonably, believed that his sentence would end on a date certain; (2) that date
comes; (3) the state takes some action consistent with a completed sentence; and
(4) the state thereafter reincarcerates that former prisoner because of a change
in the way that the state calculates sentences.28


      24
           Clark, 202 F.3d at765.
      25
           Jones v. Thomas, 491 U.S. 376, 381 (1989).
      26
           Id.
      27
           United States v. DiFrancesco, 449 U.S. 117, 136 (1980).
      28
           See id. at 136; In re Bradley, 318 U.S. 50, 52 (1943).

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                                        No. 07-10424

      Hernandez contends that under the rules governing the calculation of his
sentences at all times preceding the 2008 decision in Ex Parte Forward, he had
served the entirety of sentence #2 by October 31, 2003, and the entirety of
sentence #1 by February 2, 2004. If he is correct, then he has “satisfied” “one
valid alternative” construction of his sentence, vesting in him an expectation
that further review would not reallocate his consecutive sentences in a manner
extending his term, i.e., imposing another “valid alternative” of how he should
serve a combined twenty-eight year sentence.29
      We cannot resolve the constitutional questions Hernandez presents
without (1) discovery sufficient to reveal how, pre-Forward, Texas calculated
sentence completion dates in cases like Hernandez’s; and (2) a hearing on any
facts underlying the mixed question of law and fact of the reasonableness of the
belief of a prisoner in Hernandez’s position that his sentence was final on
February 2, 2004. As stated above, such an inquiry will necessarily include a
determination whether Hernandez’s claims are time-barred.         We therefore
remand to the district court with instructions to order the necessary discovery
and to conduct an evidentiary hearing limited to these issues. Given the limited
nature of our remand, we retain jurisdiction pending the resolution of those
issues and any facts subsidiary to their determination.
                                   III. CONCLUSION
      For the foregoing reasons, the judgment of the district court is REVERSED
and this case REMANDED; and we RETAIN jurisdiction over this case pending
the conclusion of the proceedings here ordered to be conducted on remand.




      29
           In re Bradley, 318 U.S. at 52.

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                                   No. 07-10424

REAVLEY, Circuit Judge, dissenting:


      I must disagree. The majority does not explain what the expectation is or

how Hernandez has raised an issue that warrants remand for a hearing and

judicial action. From the briefs, I assume that Hernandez has speculated about

Texas law on the calculation of sentence completion of two consecutive sentences

after the prior sentence is eligible for mandatory supervised release, but the

Texas Court of Criminal Appeals has answered that question. In Ex Parte

Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008), that court did so, changing no

law, and Hernandez’s sentence complies.        I see no basis for a legitimate

expectation contrary to Texas law.

      The Respondent’s calculation of the release date for Hernandez’s two

consecutive sentences is in accord with state law as announced in Forward, 258

S.W.3d at 155.    The court there instructed that when, like Hernandez, a

defendant’s stacked sentences involve both pre- and post-1987 offenses, the state

should calculate a mandatory supervised release date for the release-eligible

sentence and then add the length of any release-ineligible sentences to arrive at

a final mandatory supervised release date. Id. In effect, this is what the state

did here.

      Hernandez was sentenced to 18 years for burglary, an offense that was

eligible for supervised release.     Two years later, he was sentenced to a



                                       10
                                  No. 07-10424

consecutive ten-year term for murder, which was ineligible for supervised

release. Hernandez was physically released to mandatory supervision in 2003.

Upon his release, Hernandez had served approximately seven years of the 18-

year sentence for burglary and 10 years for murder.         His supervision was

revoked because of a new offense in 2004, and his final release date was

calculated to be in 2014, which accounts for the remainder of his sentence on the

burglary conviction. Hernandez has thus served the full sentence for the murder

offense, for which he could never be released to supervision, and he partially

served the burglary sentence in physical custody and was then released to

supervision on that supervised-release-eligible offense. I fail to see how any

contrary view of the law on the part of a prisoner would be of legal significance.

      Hernandez concedes through counsel’s supplemental brief that Forward

resolves how Texas treats mandatory supervision eligibility for consecutive

sentences for offenses that were committed pre- and post-1987. But he argues

that the Forward approach could not have been applied to him in 1993 or 2004

because of the then-existing law.     Hernandez then presents his purported

legitimate expectation of finality in his sentences from the pre-Forward Texas

state law. But the cases he cites do not contain the same factual or procedural

posture present here, i.e., consecutive sentences straddling the pre- and post-

1987 supervised release laws, nor does he point to evidence of the state executing

such consecutive sentences in the manner he advocates. See Ex Parte Salinas,


                                       11
                                 No. 07-10424

184 S.W.3d 240 (Tex. Crim. App. 2006); Ex Parte Gabriel, 56 S.W.3d 595 (Tex.

Crim. App. 2001); Ex Parte Millard, 48 S.W.3d 190 (Tex. Crim. App. 2001); Ex

Parte Kuester, 21 S.W.3d 264 (Tex. Crim. App. 2000); Ex Parte Ruthart, 980

S.W.2d 469 (Tex. Crim. App. 1998). The Forward court, which was aware of its

own precedent, announced no change in either state law or the statutory

construction of the supervised release statutes in light of precedent.         The

Forward court having said what the law is and was, Hernandez fails to meet his

burden of showing a legitimate expectation in the finality of his sentences.

      Because I find Forward to be dispositive of the issue here, I find no error

in the district court’s judgment and would affirm.




                                       12
