     Case: 09-20512     Document: 00511264747          Page: 1    Date Filed: 10/15/2010




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

                                                 FILED
                                                                          October 15, 2010
                                     No. 09-20512
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

WALTER CLIFFORD BECK,

                                                   Petitioner-Appellant

v.

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

                                                   Respondent-Appellee


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-2963


Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
        Walter Clifford Beck, Texas prisoner # 1339487, appeals the dismissal of
his 28 U.S.C. § 2254 habeas corpus petition as time barred. Beck’s § 2254
petition challenged his aggravated robbery conviction, for which he was
sentenced 65 years of imprisonment.
        Under § 2244(d)(1), a one-year period of limitation applies to § 2254
petitions. The limitation period does not begin to run until, at the earliest, “the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-20512    Document: 00511264747 Page: 2         Date Filed: 10/15/2010
                                 No. 09-20512

date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.”         § 2244(d)(1)(A).   The
limitations period is tolled during the pendency of a properly filed state habeas
application.   § 2244(d)(2).   Direct review is generally concluded when the
Supreme Court either rejects a petition for certiorari, rules on its merits, or by
the expiration of the 90 days allowed for a petition of certiorari to the Supreme
Court following the entry of judgment by the state court of last resort. Roberts
v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). However, “[i]f the defendant stops
the appeal process before that point, the conviction becomes final when the time
for seeking further direct review in the state court expires.” Id.
      In this case, the district court found that Beck terminated the appeal
process by missing an extended deadline for filing his petition for discretionary
review (PDR). We granted Beck a COA solely as to whether the district court
erred in finding that his PDR was untimely and dismissing his § 2254 petition
as time barred.
      Beck argues that he did not miss the PDR deadline because Texas applies
a “mailbox rule” to PDRs. If Beck is correct, then he timely filed his § 2254
petition less than a year after the expiration of the 90 days allowed for a
certiorari petition. See Roberts, 319 F.3d at 694. The respondent agrees with
Beck and asserts that the TCCA accepted Beck’s PDR as timely under Texas
Rule of Appellate Procedure 9.2(b). In addition, the respondent supplemented
the record with relevant state court papers by permission of this court.
      While a district court may raise the AEDPA time bar sua sponte in § 2254
proceedings, Day v. McDonough, 547 U.S. 198, 209 (2006), “information essential
to the [AEDPA] time calculation is often absent . . . until the State has filed,
along with its answer, copies of documents from the state-court proceedings.”
Id. at 207 n.6. In this case, because the respondent was not served prior to
dismissal of the action, the district court did not have the benefit of the pertinent
state court records which are now before this court and which would have aided

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                                  No. 09-20512

the district court’s decisional process. Furthermore, the respondent’s argument
in this court, that Beck’s § 2254 petition was timely, could be construed as a
deliberate waiver of the statute-of-limitations defense. See Day, 547 U.S. at 202
(“[W]e would count it an abuse of discretion to override a State’s deliberate
waiver of a limitations defense . . . .”).
      In light of the respondent’s position on appeal regarding the time bar and
the information contained in the record as supplemented on appeal, the order of
the district court dismissing Beck’s § 2254 petition as untimely is VACATED,
and the case is REMANDED to the district court for further proceedings
consistent with this opinion.




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