     Case: 10-40414   Document: 00511695019    Page: 1   Date Filed: 12/14/2011




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

                                                                  FILED
                                                              December 14, 2011

                                  No. 10-40414                   Lyle W. Cayce
                                                                      Clerk

DANIEL RODRIGUEZ,

                                            Petitioner - Appellant,
v.

RICK THALER, 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 BARKSDALE, GARZA, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
        Pursuant to a certificate of appealability (COA) granted by this court on
November 30, 2010, Daniel Rodriguez, Texas prisoner # 1473833, appeals the
district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as
time-barred. Because we conclude that Rodriguez did not waive his right to
direct appeal and as a result his habeas petition was timely under AEDPA, we
REVERSE the judgment of the district court and REMAND for the district court
to consider Rodriguez’s habeas petition on the merits.
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                                  No. 10-40414

                                        I.
        Rodriguez pleaded guilty to driving while intoxicated. On September 13,
2007, the state trial court sentenced Rodriguez to 25 years in prison, based in
part on Rodriguez’s two prior felony convictions. Rodriguez did not file a direct
appeal, but filed a state habeas corpus application on September 10, 2008,
claiming ineffective assistance of counsel. The Texas Court of Criminal Appeals
denied Rodriguez’s application on April 8, 2009.
        Rodriguez then filed this § 2254 habeas petition on April 15, 2009,
claiming ineffective assistance of counsel because of, inter alia, his attorney’s
failure to discover that the judgment in one of his prior convictions was allegedly
void.    The district court dismissed Rodriguez’s petition as barred by the
applicable one-year limitations period. 28 U.S.C. § 2244(d). With limited
exceptions not applicable here, that limitations period begins to run from “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). The
district court ruled that, because Rodriguez waived his right to appeal as part
of his guilty plea, the one-year limitations period began to run on the date of
Rodriguez’s sentencing—September 13, 2007—rather than 30 days later, after
the expiration of the time usually allowed for filing a notice of appeal. The
district court therefore found that Rodriguez filed his September 10, 2008, state
habeas application 362 days, rather than 332 days, after his federal limitations
period began to run.     Because the limitations period is tolled during the
pendency of a properly filed state habeas application, see 28 U.S.C. § 2244(d)(2),
the district court found that Rodriguez’s § 2254 petition was due three days after
the April 8, 2009, denial of his state habeas application. Allowing extra time
because April 11 fell on a Saturday, the district court ruled that Rodriguez’s
petition could be filed no later than Monday, April 13, 2009. Because Rodriguez



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                                      No. 10-40414

did not file his § 2254 petition until April 15, the district court ruled that it was
time-barred.
       The district court denied a COA. Because “jurists of reason would find it
debatable whether [Rodriguez’s] § 2254 petition raised a valid claim of the denial
of his Sixth Amendment right to the effective assistance of counsel,” this court
granted a COA “as to whether Rodriguez actually waived his right to appeal”
and as to “whether an appellate proceeding that results in a dismissal pursuant
to the enforcement of an appeal waiver . . . constitute[s] ‘direct review’ under
§ 2244(d)(1)(A).”1 See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (where a
district court has dismissed a habeas petition on procedural grounds, a court
may issue a COA only if the petitioner shows both “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling”); see also Houser v. Dretke,
395 F.3d 560, 562 (5th Cir. 2004).
                                             II.
       We review de novo a district court’s denial of a habeas petition on
procedural grounds. Mark, 646 F.3d at 193. We conclude that the district court
improperly dismissed Rodriguez’s habeas petition as time-barred because the
record does not establish that Rodriguez actually waived his right to appeal. To


       1
         Respondent argues that where an appeal waiver exists a conviction becomes final
immediately, not 30 days later, because “[a] court cannot define ‘direct review’ by indulging
the assumption that prisoners will dishonor the commitments that they make in plea
agreements.” Respondent’s reasoning would seem to require the habeas court to delve into the
merits of a hypothetical appeal to determine the date by which a conviction becomes final for
purposes of calculating AEDPA deadlines. Moreover, we have made clear in a related context
that “[t]he merits of [a hypothetical post-conviction petition] are simply not germane to the
analysis of whether the ‘availability of direct appeal to the state courts . . . has been
exhausted.’” Mark v. Thaler, 646 F.3d 191, 194 (5th Cir. 2011) (quoting Jimenez v.
Quarterman, 129 S. Ct. 681, 685 (2009)). Nevertheless, because we conclude that Rodriguez
did not waive his right to appeal, we do not decide this second question for which we granted
a COA in this case.

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                                  No. 10-40414

the contrary, Rodriguez’s plea agreement, which the trial court explicitly
approved at Rodriguez’s sentencing hearing, advised Rodriguez that he “has the
right to appeal.” The agreement later stated that “in a plea bargain case” in
which “the punishment did not exceed the punishment recommended by the
prosecutor and agreed to by the defendant,” the “defendant may appeal only
those matters raised by written motion filed and ruled on before trial or after
getting the trial court’s permission to appeal.” To be sure, Rodriguez, his
attorney, and the prosecutor signed a document entitled “Proposed Punishment
Recommendation,” which indicated that “the State, upon Defendant’s plea of
guilty, will recommend to the Court that . . . Defendant waives any rights he
might have to appeal this case.” The transcript of Rodriguez’s sentencing,
however, reflects that the State never recommended to the trial court that
Rodriguez was waiving his right to appeal. Moreover, the trial court only asked
if Rodriguez understood and signed the Proposed Punishment Recommendation,
but did not adopt or approve that document as it did Rodriguez’s plea agreement.
Given the inconsistency between the Proposed Punishment Recommendation
and Rodriguez’s actual plea agreement, which the trial court explicitly approved,
we conclude that the latter controls. Rodriguez did not waive his right to appeal.
      Because Rodriguez had 30 days during which to pursue direct review of his
sentence, the district court should have found, pursuant to 28 U.S.C.
§ 2244(d)(1), that the one-year limitations period for Rodriguez’s habeas petition
began to run on October 13, 2007 instead of September 13, 2007. Accordingly,
after allowing for the tolling of the limitations period during the pendency of his
state habeas application, Rodriguez’s § 2254 petition was due on May 11, 2009,
not April 11, 2009. His April 15, 2009, filing was therefore timely, and the
district court improperly dismissed his habeas petition as time-barred.




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                                 No. 10-40414

                                      III.
      We REVERSE the judgment of the district court and REMAND for the
district court to consider Rodriguez’s habeas petition on the merits.




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