     Case: 13-60823        Document: 00513405102          Page: 1     Date Filed: 03/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                        No. 13-60823                                FILED
                                                                                March 3, 2016

CEDRIC CATCHINGS,
                                                                               Lyle W. Cayce
                                                                                    Clerk

                Petitioner - Appellant

v.

MARSHALL L. FISHER, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS,

                Respondent - Appellee




                     Appeal from the United States District Court
                       for the Southern District of Mississippi


Before CLEMENT and HAYNES,                           Circuit    Judges,      and         GARCIA
MARMOLEJO, District Judge.*
EDITH BROWN CLEMENT, Circuit Judge.
      This appeal presents a single issue: Whether Cedric Catchings’s habeas
petition was timely filed. Because it was filed more than twelve months after
his conviction became final on direct review, we conclude that it was untimely.
                                               I.
      A Mississippi state court convicted Catchings of capital murder and
sentenced him to life in prison. He appealed, but a Mississippi intermediate



      *   District Judge for the Southern District of Texas, sitting by designation.
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                                  No. 13-60823
court of appeals affirmed his conviction and sentence. Then he filed a petition
for certiorari with the Mississippi Supreme Court, which denied that petition
on July 22, 2010. More than a year later, on October 21, 2011, he filed a petition
for certiorari with the United States Supreme Court. On February 21, 2012,
the Supreme Court denied his petition without explanation.
      Catchings then petitioned for a writ of habeas corpus under 28 U.S.C.
§ 2254. His petition was signed November 19, 2012, postmarked February 20,
2013, and filed March 8, 2013. The government moved to dismiss the petition
as untimely under section 2244(d)(1)(A). The magistrate judge recommended
that the district court grant the motion to dismiss. The district court agreed
and dismissed Catchings’s petition as untimely. Catchings requested a
certificate of appealability from the district court, but the district court denied
that request. This court, however, granted a certificate of appealability on the
question whether “Catchings’s federal habeas petition . . . was untimely
following the Supreme Court’s unexplained denial on direct appeal of his
(apparently) untimely petition for certiorari.”
                                        II.
      Section 2244(d) provides a one-year limitations period within which a
habeas petition must be filed, running from the latest of several occurrences.
Only one such occurrence is at issue here: “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). Thus, the timeliness of
Catchings’s petition depends on whether he filed it within one year from the
date on which his conviction became final on direct review or the date on which
the time for seeking further direct review expired.
      The Mississippi Supreme Court denied Catchings’s petition for certiorari
on direct review on July 22, 2010. Under Supreme Court Rule 13(1),
Catchings’s petition for certiorari, if any, with the United States Supreme
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Court was due on October 20, 2010. Once that date passed, the “time for
seeking [direct] review” concluded, thereby making his conviction final, and
section 2244(d)(1)(A)’s one-year limitations period began to run. See Roberts v.
Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (explaining that “the decision
became final when the time for seeking further direct review expired”);
Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998) (noting that conviction
became final for petitioner who did not file petition for certiorari “ninety days
after judgment was entered” (citing Caspari v. Bohlen, 510 U.S. 383 (1994))).
Catchings’s habeas petition, filed more than two years later, was thus
untimely.
       Catchings disagrees. He argues that under section 2244(d)(1)(A), his
conviction did not become final until February 21, 2012, when the United
States Supreme Court denied his petition for certiorari. 1 That petition, filed on
October 21, 2011, was, under the Supreme Court’s own rules, untimely—by 12
months. Yet Catchings contends that the Supreme Court, by denying his
petition without explanation, did not dismiss his petition as untimely but
instead exercised its discretion to consider out-of-time criminal petitions and
then denied it. Thus, he argues, because the Supreme Court purportedly
exercised its discretion to entertain his untimely petition, his conviction did
not become final until that petition was denied, making his habeas petition
timely. 2


       1 Catchings argues that this would make his habeas petition timely because it was
postmarked February 20, 2013, less than a year later.
       2 Catchings makes two additional arguments. First, he contends that his state habeas

petition, filed on October 21, 2011 and denied on December 14, 2011, tolled the one-year
limitations period under section 2244(d)(2). But even if it did, subtracting the two-month
period during which that petition was pending does not make his petition timely—it was filed
more than two years after his conviction became final.
       Second, he maintains that because the Supreme Court returned his petition for
certiorari as unaccompanied by a motion for leave to proceed in forma pauperis and gave him
60 days to correct that defect, the Supreme Court revived his direct review. We refuse to
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       At its core, Catchings’s argument is an attempt to exploit a seeming gap
in the Supreme Court’s precedents. In Gonzalez v. Thaler, 132 S. Ct. 641
(2012), the Supreme Court explained that section 2244(d)(1)(A) divides
petitioners into two distinct categories: those who pursue direct review all the
way to the Supreme Court and those who do not. For those who do, convictions
become final when the Supreme Court “affirms a conviction on the merits or
denies a petition for certiorari.” Id. at 653. For those who do not, convictions
become final “when the time for pursuing direct review in [the Supreme Court],
or in state court, expires.” Id. at 653-54; see also Foreman v. Dretke, 383 F.3d
336, 338 (5th Cir. 2004) (explaining that section 2244(d)(1)(A)’s limitations
period begins to run for a petitioner who has pursued his appeal through the
highest state court (1) “when the Supreme Court either rejects the petition for
certiorari or rules on its merits,” or (2) “[i]f no petition is filed,” after the “90
days for filing a petition for certiorari to the Supreme Court” expires). What
about those who file an untimely petition for certiorari, arguably thus pursuing
direct review all the way to the Supreme Court? Into which category do those
petitioners fall?
       In Catchings’s view, because he eventually filed a petition for certiorari,
he falls into Gonzalez’s first category of petitioners: those who pursue direct
review all the way to the Supreme Court. Thus, he argues, his limitations
period began to run when the Supreme Court rejected his petition.
       We reject this argument. That Catchings eventually filed a petition for
certiorari, a year late, does not mean that the limitations period did not begin
to run when he missed the deadline for doing so—or that he does not fall into



interpret the Clerk of the Supreme Court’s action in requiring Catchings to fix a specific filing
defect as altogether forgiving the untimeliness of Catchings’s petition—indeed, he did not file
a motion for an extension as is required under Supreme Court Rule 13(5). We further note
that Catchings’s argument is unsupported by any authority.
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Gonzalez’s second category of petitioners, those who do not pursue direct
review all the way to the Supreme Court because “no petition is filed.” 3 See
Gonzalez, 132 S. Ct. at 653 (noting that in Jimenez v. Quarterman, 555 U.S.
113, 120 (2009), the Supreme Court “held that [petitioner’s] judgment became
final when his ‘time for seeking certiorari review in this Court expired’”); Wall
v. Kholi, 562 U.S. 545, 548 (2011) (explaining that “respondent’s conviction
became final on direct review when his time expired for filing a petition for a
writ of certiorari in this Court” (citing Jimenez, 555 U.S. 113)); Roberts, 319
F.3d at 694 (“If the conviction does not become final by the conclusion of direct
review, it becomes final by ‘the expiration of the time for seeking such review,’”
including the 90-day period within which to file a petition for certiorari.). A
contrary rule would permit any petitioner who missed the 90-day certiorari
deadline to file a petition for certiorari years later and argue that his one-year
limitations period did not begin until that late petition was denied. We thus
decline to read the Supreme Court’s apparent practice of denying late petitions
without explanation, rather than simply refusing to file them, as reviving the
direct review of tardy petitioners for purposes of section 2244(d)(1)(A). Cf.
United States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011) (rejecting argument
that analogous limitations period in section 2255(f)(1) was restarted when
Supreme Court forgave untimeliness of petition through its unexplained and
apparently routine denial of that untimely petition).
                                             III.
       For the foregoing reasons, we AFFIRM.



       3 We express no opinion on whether, had the Supreme Court exercised its discretion
to consider out-of-time criminal petitions and granted Catchings’s petition, he would thus
jump from Gonzalez’s second category into its first. Cf. Jimenez, 555 U.S. at 121 (holding that
“where a state court grants a criminal defendant 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)”).
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