     Case: 16-20651   Document: 00514549236    Page: 1   Date Filed: 07/11/2018




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

                                                                       FILED
                                No. 16-20651                       July 11, 2018
                                                                  Lyle W. Cayce
WILLIAM EDWARD ERICKSON,                                               Clerk


             Petitioner - Appellant

v.

LORIE DAVIS, 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 DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      William Edward Erickson, Texas prisoner #1805402, filed a petition for
federal habeas corpus relief in the district court. Texas filed a motion for
summary judgment on the basis that Erickson’s petition was time barred. The
district court granted the motion. For the reasons set forth, we vacate and
remand.
                                      I.
      Erickson pleaded guilty to murder and was sentenced to life
imprisonment in state court. Erickson v. State, No. 14-12-00767-CR, 2013 WL
6405476, *1 (Tex. App. Dec. 5, 2013) (unpublished). On direct appeal, the state
    Case: 16-20651     Document: 00514549236      Page: 2   Date Filed: 07/11/2018



                                   No. 16-20651
appellate court affirmed his conviction and sentence, but the court modified
the judgment to delete the specific dollar amount of court costs assessed
against Erickson. Id. at *5–6. Both Erickson and the State sought petitions for
discretionary review (“PDR”) in the Texas Court of Criminal Appeals (“TCCA”).
Erickson v. State, No. PD-1709-13, 2014 WL 1512969, *1 (Tex. Crim. App. Apr.
16, 2014) (unpublished). The TCCA granted the State’s PDR as to court costs,
vacated the state appellate court’s judgment, and remanded. Id. But, the TCCA
denied Erickson’s PDR in the same opinion. Id.
      On May 29, 2014, the state appellate court addressed the court costs
question on remand. Erickson v. State, No. 14-12-00767-CR, 2014 WL 2447068,
*1 (Tex. App. May 29, 2014). In light of new TCCA controlling law, the
appellate court affirmed the original judgment of the trial court. Id. Erickson
did not seek further review in the TCCA or by writ of certiorari to the United
States Supreme Court.
      Erickson then filed a state habeas application on January 22, 2015. The
TCCA denied the habeas application without written order on the findings of
the trial court on June 3, 2015.
      Then, Erickson filed his 28 U.S.C. § 2254 petition on November 12, 2015.
The State moved for summary judgment, arguing that Erickson’s federal
habeas petition was time barred. The district court granted the State’s motion
and dismissed the § 2254 petition as time barred. The district court also denied
a certificate of appealability (“COA”).
      Erickson filed a timely notice of appeal to this court and moved for a
COA. This court granted Erickson a COA as to whether his § 2254 petition was
timely and we now consider the issue.
                                          II.
      The court reviews a district court’s dismissal of a habeas petition as time
barred de novo. Mathis v. Thaler, 616 F.3d 461, 473 (5th Cir. 2013).
                                          2
    Case: 16-20651    Document: 00514549236       Page: 3   Date Filed: 07/11/2018



                                   No. 16-20651
                                       III.
      Erickson contends that his § 2254 petition was timely because his state
conviction became final on July 16, 2014—90 days after the TCCA refused his
PDR on April 16, 2014 and his time to file a petition for a writ of certiorari in
the United States Supreme Court expired. The district court instead
determined that Erickson’s time to file began to run on June 30, 2014—30 days
after the state appellate court’s May 29, 2014 opinion on remand, and when
his period for filing a petition for a PDR on that issue expired. Despite its
contrary position in the district court, the State now concedes that Erickson’s
petition was timely, and it agrees that the district court’s judgment should be
vacated and the case remanded for further proceedings.
      The Antiterrorism and Effective Death Penalty Act of 1996 relevantly
provides that a prisoner in custody pursuant to a judgment of a state court
must file his § 2254 application within one year 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)(A). This limitation
period is tolled during the pendency of “a properly filed application for State
post-conviction or other collateral review.” Id. § 2244(d)(2). When granting
Erickson’s COA, this court explained that “our precedent indicates both that a
conviction becomes final 30 days after the final ruling of a Texas court of
appeals when a petitioner does not file a PDR and that a conviction becomes
final 90 days after the final ruling of the TCCA when a petitioner does not file
a petition for writ of certiorari, [but] it does not indicate which date is
controlling when they conflict.”
      Although this court has not directly addressed this issue, Roberts v.
Cockrell is instructive. In Roberts, this court explained that “a decision
becomes final by the conclusion of direct review or the expiration of the time
for seeking such review.” 319 F.3d 690, 694 (5th Cir. 2003) (internal quotations
                                        3
    Case: 16-20651     Document: 00514549236     Page: 4   Date Filed: 07/11/2018



                                  No. 16-20651
omitted). And because “direct review includes a petition for certiorari to the
Supreme Court[,] . . . the conclusion of direct review is when the Supreme Court
either rejects the petition for certiorari or rules on its merits.” Id. (internal
quotations omitted); see also Jimenez v. Quarterman, 555 U.S. 113, 120 (2009)
(explaining that convictions are not final if it is still “capable of modification
through direct appeal . . . to th[e] [Supreme] Court on certiorari review”).
Finally, “[i]f 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.”
Roberts, 319 F.3d at 694 (internal quotations omitted); see also Gonzalez v.
Thaler, 565 U.S. 134, 149–50 (2012).
      Here, although Erickson’s time to seek any further relief in state court
expired on June 30, 2014—30 days after the state appellate court’s opinion on
remand—his time to seek relief in the Supreme Court as to the TCCA’s denial
of his PDR had not yet expired. Erickson’s option to file, and time for filing, a
writ of certiorari was not affected by the TCCA’s grant of the State’s PDR. That
Erickson did not actually file a petition for certiorari is insignificant. See
Roberts, 319 F.3d at 694. Therefore, the date which Erickson’s conviction
became final, and the date that must be used to calculate Erickson’s one-year
deadline for filing a § 2254 petition, is July 16, 2014—90 days after the TCCA
refused his PDR on April 16, 2014. The one-year period was tolled for 133 days,
from January 22, 2015 until June 3, 2015, during the pendency of his state
habeas application. 28 U.S.C. § 2244(d)(2). Erickson’s § 2254 petition was
therefore due on or before November 25, 2015. Because Erickson filed the
application on November 12, 2015, his § 2254 application was timely.
      Accordingly, the judgment of the district court is VACATED and the case
is REMANDED for proceedings on Erickson’s habeas petition.




                                        4
