     Case: 09-30576 Document: 00511318853 Page: 1 Date Filed: 12/13/2010




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

                                              FILED
                                                               December 13, 2010

                                  No. 09-30576                   Lyle W. Cayce
                                                                      Clerk

JASON MATTHIS

                                            Petitioner–Appellant
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

                                            Respondent–Appellee




                 Appeal from the United States District Court
                     for the Eastern District of Louisiana




Before WIENER, GARZA, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
      Jason Matthis (“Appellant”) appeals the district court’s dismissal of his
habeas corpus petition brought pursuant to 28 U.S.C. § 2254 as untimely. The
district court found that Appellant’s petition was time-barred by 28 U.S.C.
§ 2244(d)(1). The court held that Appellant exceeded the limitations period
because he filed his federal habeas petition more than one year after the date his
state conviction became final by conclusion of direct review, notwithstanding
tolling of the limitations period during the pendency of his state post-conviction
review pursuant to 28 U.S.C. § 2244(d)(2). Appellant contends that because the
state district court vacated his conviction and granted him a new trial on post-
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                                  No. 09-30576

conviction review, the finality of his conviction was destroyed for purposes of
§ 2244(d)(1). He argues that especially in light of the principles announced in
Jimenez v. Quarterman, 129 S.Ct. 681 (2009), his conviction was not final on
direct review under 28 U.S.C. § 2244(d)(1)(A) until the Louisiana Supreme Court
reinstated his conviction and sentence.          Because the overturning and
reinstatement of Appellant’s conviction occurred solely through post-conviction
review, we find that this did not affect the date his conviction became final under
direct review and thus his federal habeas petition was untimely. We therefore
affirm.
               I. FACTUAL AND PROCEDURAL HISTORY
      Jason Matthis was convicted of second-degree murder in Louisiana state
court on September 22, 1999, and sentenced to life in prison. The Louisiana
Fourth Circuit Court of Appeal affirmed, and the Louisiana Supreme Court
denied Appellant’s application for a writ of certiorari on November 9, 2001. On
February 8, 2002, after the ninety-day period for petition to the U.S. Supreme
Court expired, Appellant’s conviction became final. On November 8, 2002,
Appellant filed an application for state post-conviction relief. The state district
court granted post-conviction relief and ordered a new trial on November 8,
2006. After the Louisiana appellate court declined to overturn the state district
court, the Louisiana Supreme Court reversed the state district court’s grant of
post-conviction relief and reinstated Appellant’s conviction and sentence on
November 2, 2007. The Louisiana Supreme Court thereafter denied his petition
for rehearing on January 7, 2008.
      Appellant filed his federal habeas petition on July 28, 2008. The district
court dismissed his petition with prejudice as untimely on June 30, 2009, and
denied a certificate of appealability (“COA”) thereafter. After Appellant timely
appealed, we granted a COA on the issue of whether Appellant’s habeas petition
was time-barred under 28 U.S.C. § 2244(d)(1).

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                               II. DISCUSSION
      Appellant acknowledges that under “traditional analysis” his conviction
became final by the conclusion of direct review on February 8, 2002. Starting
from this date, 272 days elapsed before the limitations period was tolled by his
filing of a state post-conviction petition. After his state post-conviction review
concluded, another 202 days elapsed before Appellant filed his federal habeas
petition. Thus, 474 days had elapsed (excluding the tolling period), thereby
exceeding the one-year limitations period. Appellant nonetheless claims that
this Court should find his petition timely, because when the state district court
vacated his conviction and ordered a new trial, he was no longer a “person in
custody pursuant to the judgment of a State court” under 28 U.S.C. § 2244(d)(1).
Therefore, Appellant argues, the finality of the judgment was destroyed for the
purposes of § 2244(d)(1)(A), resetting the limitations period. Appellant asserts
that the limitations period did not begin until the Louisiana Supreme Court
reinstated his conviction. He further cites the Supreme Court’s 2009 decision in
Jimenez as support for his contention that “a conviction cannot be final when the
petitioner’s conviction is still capable of modification by appellate review by the
State courts.”
      “We review de novo the denial of a federal habeas petition on procedural
grounds.” Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).
      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
includes a limitations period for the filing of a federal habeas petition “by a
person in custody pursuant to the judgment of a State court.” 28 U.S.C.
§ 2244(d)(1); see Lawrence v. Florida, 549 U.S. 327 (2007). The statute provides
that the limitations period shall run from the latest of four possible dates, the
relevant one here being “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). This provision works in conjunction with 28 U.S.C. §

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2244(d)(2), which provides for a tolling of the limitations period during the time
in which “a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment is pending.” The Supreme Court
has further held that “the conclusion of direct review occurs when ‘this Court
affirms a conviction on the merits on direct review or denies a petition for a writ
of certiorari,’” or when the “‘the time for filing a certiorari petition expires.’”
Jimenez, 129 S.Ct. at 685 (quoting Clay v. United States, 537 U.S. 522, 527,
528–32 (2003)).
       Although the question of whether the overturning and subsequent
reinstatement of a conviction on state post-conviction review destroys the
finality of a judgment for purposes of § 2244(d)(1)(A) is one of first impression in
this Circuit,1 its answer is straightforward. The language of § 2244(d)(1)(A)
plainly refers to the date on which the “judgment became final by the conclusion
of direct review or the expiration of time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A) (emphasis added). Guided by the maxim that “when the statutory
language is plain, we must enforce it according to its terms,” Jimenez, 129 S.Ct.
at 685, Appellant must therefore show that the state district court’s overturning
of his conviction constituted a reinstatement of direct review. This he cannot do.
As Appellant acknowledges in his brief, the state district court overturned his
conviction on post-conviction review, not on direct review. The language of the
statute clearly distinguishes between the two phases of review, accounting for




       1
         This Court addressed a similar factual scenario in a previous unpublished summary
calendar opinion; the issue in that case, however, was not whether the defendant’s petition
was timely, but whether the Court should equitably toll the statute of limitations for
petitioner’s otherwise untimely habeas petition. See LeBlanc v. Travis, 352 F. App’x 966 (5th
Cir. 2009). Although the issue before the court was different, it did note that “[t]he decision
of the Louisiana Supreme Court [reinstating petitioner’s conviction after it was initially
overturned on post-conviction review] cannot be considered a new charge that began a new
finality date.” Id. at 967.

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direct review under § 2244(d)(1)(A), and allowing for tolling during post-
conviction review under § 2244(d)(2).
         The reference of § 2244(d)(1) to “a person in custody pursuant to the
judgment of a State court” also does not change the result. When Appellant filed
his application for a writ of habeas corpus, he was in, and remains in, custody
pursuant to the state court judgment. His period of release after the conviction
was overturned on post-conviction review and before the conviction was
reinstated was accounted for by § 2244(d)(2); the limitations period was tolled
during his release as well as the entirety of his post-conviction review in state
court.
         The Supreme Court’s decision in Jimenez also provides no support to
Appellant’s argument. Jimenez dealt with the question of whether a state
court’s grant of an out-of-time appeal to reopen direct review of the petitioner’s
conviction destroyed the finality of the judgment on direct review under
§ 2244(d)(1)(A). See 129 S.Ct. at 686. The Court held that “where a state court
grants . . . the right to file an out-of-time direct appeal during state collateral
review, but before the defendant has first sought federal habeas relief, his
judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A).” Id. (emphasis added).
The Court further noted that its decision was “a narrow one.” Id. Because it is
uncontested that, unlike in Jimenez, the state courts overturned and then
reinstated Matthis’s conviction on post-conviction, and not direct review,
Jimenez is inapposite.
         The only other situation in which claims for post-conviction relief may
potentially implicate § 2244(d)(1)(A) is where the state uses a method of appeal
by which the direct appeal is stayed while the defendant institutes proceedings
for post-conviction relief, and the direct and post-conviction appeals are
consolidated and decided together. See Nelson v. Hvass, 280 F.3d 872, 873–74
(8th Cir. 2002) (holding that where Minnesota court procedures require such a

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process and the state appellate court hears both the direct appeal and post-
conviction-relief appeal together, direct review is not final until the combined
appeal is concluded). Louisiana does not require such a procedure, and here,
Appellant’s direct review concluded before he instituted proceedings for post-
conviction relief.
                             III. CONCLUSION
      We therefore affirm the decision of the district court dismissing
Appellant’s habeas application as untimely pursuant to § 2244(d)(1).
      AFFIRMED.




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