Godfrey v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
January 10, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-21139
_______________
MARK DAVID GODFREY,
Petitioner-Appellant,
VERSUS
DOUG DRETKE,
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 HIGGINBOTHAM, SMITH, and
BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In 1998, Mark Godfrey was convicted of
burglary of a habitation and was sentenced to
fifty years’ imprisonment. His sentence was
enhanced by expired convictions from 1982
and 1991 (together, the “expired convic-
tions”). In December 2000 he filed a state
application for postconviction relief, alleging
that the 1998 conviction was erroneously
enhanced by the expired convictions. The
Texas Court of Criminal Appeals (“TCCA”)
rejected that application. In October 2001
Godfrey filed two more state applications for
postconviction relief alleging the same
deficiencies as in his December 2000 applica-
tion but styling the new applications as direct

-- 1 of 8 --

2
attacks on the 1982 and 1991 convictions.
The TCCA rejected these petitions as well.
Godfrey filed the instant petition under 28
U.S.C. § 2254 in April 2002. The district
court found his federal petition to be
time-barred, reasoning that his October 2001
petitions had not tolled the applicable statute
of limitations under the Antiterrorism and
Effective Death Penalty Act of 1996
(“AEDPA”). The court decided, however,
that the issue is debatable and issued a cer-
tificate of appealability (“COA”) on the tolling
question.
I.
A.
The following is a chronology of important
events beginning with Godfrey’s 1998 convic-
tion (the “current conviction”):
•October 14, 1998: Convicted of burglary
of a habitation.
•December 16, 1999: Current conviction
and sentence affirmed on direct appeal.
•May 3, 2000: TCCA refused petition for
discretionary review of the current con-
viction.
•August 1, 2000: Conviction became final
by expiration of 90-day period to petition
for writ of certiorari (as found by district
court).
•December 18, 2000: Godfrey filed single
state application for postconviction relief
challenging expired convictions insofar as
they were used to enhance current convic-
tion.
•June 6, 2001: TCCA denied December
2000 application.
•October 26, 2001: Godfrey filed two state
postconviction applications directly chal-
lenging validity of 1982 and 1991 convic-
tions.
•January 25, 2002: Statute of limitations
expired (as determined by district court).
•February 6, 2002: TCCA denied October
2001 state postconviction applications.
•April 28, 2002: Godfrey filed the instant
§ 2254 petition challenging 1998 burglary
conviction and sentence.
B.
In his December 2000, application for post-
conviction relief, Godfrey argued that his sen-
tence had been erroneously enhanced by in-
valid convictions.1 The TCCA denied the
application on June 13, 2001. One hundred
seventy-seven days elapsed between the filing
and the denial.
1 Specifically, Godfrey sought postconviction
relief alleging, with respect to his 1982 conviction,
that he had been sentenced to five years’ probation
and that his 1988 revocation hearing was outside
the five-year probationary period. Therefore, he
argued, under Texas law the conviction was not
final and could not be used for enhancement
purposes. He also contended that the revocation
was invalid because his counsel was absent during
the revocation hearing.
Godfrey argued that his 1991 conviction was
invalid because his appointed counsel failed to ap-
pear at the preliminary hearing and plea negotia-
tions with the prosecutor, the latter of which God-
frey avers resulted in an uncounseled plea
agreement.

-- 2 of 8 --

3
On October 26, 2001, Godfrey filed two
state postconviction applications challenging
the expired convictions directly. The sub-
stance of the challenges were identical to those
articulated in Godfrey’s challenge to the use of
the two convictions for enhancement. The
TCCA rejected these applications on February
6, 2001. One hundred five days elapsed
between the filing and the rejection.
On April 28, 2002, Godfrey filed the instant
§ 2254 petition, challenging the sentence
associated with the current conviction, arguing
(1) that the trial court had erroneously consid-
ered the expired convictions because the state
did not notify him of its intent to introduce
them; (2) that the state court erroneously used
the convictions to enhance his sentence (for
the same reasons he stated in his state applica-
tion for postconviction relief); and (3) that he
received ineffective assistance of trial counsel.
The state moved for summary judgment,
alleging that the petition was time-barred.
The district court agreed, determining that
because Godfrey’s 1998 conviction had be-
come final on August 1, 2000, and because his
state postconviction application tolled the
limitations period for 177 days, his petition
was untimely as of January 25, 2002. It there-
fore rejected his April 2002 § 2254 petition.
Godfrey filed a FED. R. CIV. P. 59(e) mo-
tion to arrest judgment, arguing that his Octo-
ber 2001 applications challenging the expired
convictions should have tolled limitations and
that his April 2002 § 2254 petition was not
time-barred. The district court rejected this
argument.
The district court relied on Lackawanna
County Dist. Attorney v. Coss, 532 U.S. 394,
401-02 (2001), for the proposition that attacks
on expired convictions used to enhance current
sentences generally do not state a cognizable
claim in § 2254 proceedings where the state
challenges to the expired convictions are
themselves time-barred. The major exception
to that rule involves cases in which the habeas
application alleges a failure to appoint counsel.
Deciding that Godfrey did not fit under the
exception, the court determined that he could
not collaterally attack the expired convictions
in a § 2254 proceeding. Based on that
reasoning, the court then opined that
Godfrey’s state postconviction applications
challenging the expired convictions did not toll
limitations under § 2244(d)(2) because they
were not challenges to the “pertinent judgment
or claim.”
II.
Section 2244(d)(2) provides that “[t]he
time during which a properly filed application
for State postconviction or other collateral
review with respect to the pertinent judgment
or claim is pending shall not be counted to-
ward any period of limitation.” The funda-
mental issue is whether Godfrey’s two Octo-
ber 2001 state postconviction applications
tolled the limitations period for filing a § 2254
petition regarding his current conviction. If
they did, Godfrey’s April 2002 federal habeas
petition challenging his 1998 conviction was
timely; if they did not, his petition was
time-barred under § 2244(d)(2).
As a preliminary matter, we divide our
analysis into three components: (1) the juris-
dictional component, i.e., whether Godfrey
was “in custody” for purposes of federal
habeas jurisdiction; (2) whether his state
petition states a cognizable claim under §
2254; and (3) the limitations statute’s tolling
requirements. The primary focus is the third

-- 3 of 8 --

4
component.2
A.
The state does not challenge federal juris-
diction over Godfrey’s application. In Maleng
v. Cook, 490 U.S. 488, 490-91 (1989), the
Court held that § 2254’s “in custody” require-
ment is satisfied when a habeas petitioner
attacks an expired conviction used to enhance
his current punishment if the § 2254 petition
can be read as a challenge to the current con-
viction.3
B.
Section 2244(d)(2) provides for tolling
during the pendency of a properly filed appli-
cation for state postconviction relief with
respect to the pertinent judgment or claim. A
state application is “properly filed” if it meets
certain formal requirements and if the court in
which it is filed has jurisdiction to consider it.
See Artuz v. Bennett, 531 U.S. 4, 9-10 (2000);
Larry v. Dretke, 361 F.3d 890, 893 (5th Cir.),
cert. denied, 125 S. Ct. 141 (2004). Accord-
ing the state petitions some level of judicial
review, the TCCA exercised jurisdiction
sufficient to qualify Godfrey’s state applica-
tions as “properly filed” under the
§ 2244(d)(2) requirement.4
III.
Regarding the denial of habeas relief, the
district court’s findings of fact are reviewed
for clear error and issues of law de novo.
Moody v. Johnson, 139 F.3d 477, 480 (5th
Cir. 1998).
Section 2244(d)(2) states that “[t]he time
during which a properly filed application for
State postconviction or other collateral review
with respect to the pertinent judgment or
claim is pending shall not be counted toward
any period of limitation” (emphasis added).
A.
The district court correctly observed that,
although federal courts may exercise jurisdic-
tion over habeas petitions that attack expired
convictions used to enhance a sentence, the
Supreme Court has said that they generally do
not state a cognizable legal claim. See Coss,
532 U.S. at 402. The Court has recognized an
exception where the conviction “was obtained
[because of] a failure to appoint counsel in
violation of the Sixth Amendment,” as set
forth in Gideon v. Wainwright, 372 U.S. 335
(1963). See Coss, 532 U.S. at 404. In those
2 We address only the tolling question. The dis-
trict court granted a COA that actually raises six
issues, but given that the entirety of the court’s
opinion seems to concern the tolling issue, we infer
(and it seems clear from the briefs) that it meant to
grant a COA on that issue alone.
3 Maleng, however, left open the question of
“the extent to which the [prior expired] conviction
itself may be subject to challenge in the attack
upon the [current] senten[ce] which it was used to
enhance.” Maleng, 490 U.S. at 484. The Maleng
Court therefore noted explicitly the distinction
between the inquiry surrounding whether the “in
custody” requirement is satisfied and the inquiry
surrounding whether the petitioner can state a cog-
nizable claim. This is not the same operative
distinction creating confusion in this case, but it
underscores the need to distinguish between the
cognizability requirements and other components of
the tolling statute.
4 The applications were denied without written
order, indicating that they were “accorded some
level of judicial review” by the TCCA. See Jack-
son v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998)
(observing that in Texas writ jurisprudence, a de-
nial of relief instead of a dismissal by the TCCA
disposes of the merits of the claim); Ex Parte Tor-
res, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).

-- 4 of 8 --

5
instances, the petitioner may attack the expired
conviction used to enhance a current one
irrespective of whether the expired conviction
remains open to direct or collateral attack.
The question whether Godfrey may state a
cognizable claim under § 2254, however, is
distinct from the issue of tolling. The question
in this appeal is whether Godfrey’s October
2001 state habeas applications tolled the
statute of limitations under § 2244(d)(2). The
district court seems to have conflated the two
inquiries, reasoning that, because Godfrey
failed to demonstrate that he was without
counsel during proceedings associated with the
expired convictions, his state petitions
attacking the expired convictions did not toll
limitations for his federal petition.5
Although the COA did not issue for this
question, the district court was correct in
determining that Godfrey’s state petition did
not fit within the Coss exception for purposes
of determining legal cognizability. Where the
enhanced conviction is obtained after failure to
appoint counsel in violation of the Sixth
Amendment,6 the petitioner may attack the
enhanced sentence irrespective of the status of
convictions used to enhance it. Godfrey
basically alleges that his plea of nolo conten-
dere in the 1991 conviction) and his probation
revocation in the 1982 conviction) were
uncounseled. The district court adequately
explained why Godfrey does not qualify for
the Coss exception, but the cognizability issue
is not before us now.
B.
Section 2244(d)(2)provides that “[t]he time
during which a properly filed application for
State post-conviction or other collateral re-
view with respect to the pertinent judgment or
claim is pending shall not be counted toward
any period of limitation.” The important issue
is whether Godfrey’s October 2001 state
habeas applications challenging the expired
convictions constitute attacks on the “pertinent
judgment or claim,” namely the 1998
conviction that the two expired convictions
were used to enhance. On no occasion has
this court had to parse carefully the relevant
phraseology and decide what, for purposes of
2244(d)(2), constitutes a pertinent judgment
and what constitutes a pertinent claim.
5 Essentially, the district court determined that
because Godfrey’s October 2001 applications did
not state cognizable § 2254 claims, they could not
toll the § 2244(d)(2) statute of limitations. There
appears to be no Fifth Circuit authority on this is-
sue, but that reasoning appears both (1) coun-
ter-intuitive, given that it would render the statute
of limitations inquiry entirely redundant of a merits
inquiry, and (2) counter to the law of other circuits.
Other courts of appeals have found that a state
application attacking expired convictions insofar as
they are used for enhancement purposes satisfies
the “pertinent judgment” component of the tolling
inquiry. See, e.g., Ford v. Moore, 296 F.3d 1035,
1038, 1040 (11th Cir. 2002) (tolling limitations
period regardless of whether properly filed state
application raised a federally cognizable claim);
Sweger v. Chesney, 294 F.3d 506, 509 (3d Cir.
2002) (tolling limitations period during pendency
of state postconviction application regardless of the
claims raised therein); Tillema v. Long, 253 F.3d
494, 502 (9th Cir. 2001) (stating that the “period
of limitation is tolled during the pendency of a state
application challenging the pertinent judgment,
(continued...)
5(...continued)
even if the particular application does not include
a claim later asserted in the federal habeas
petition”).
6 This determination is made pursuant to Gid-
eon, 372 U.S. at 335.

-- 5 of 8 --

6
Godfrey argues that Dilworth v. Johnson,
215 F.3d 497 (5th Cir. 2000), controls the
tolling issue. That case dealt with a similar
situation, where the federal petitioner chal-
lenged, in a state writ application, a conviction
that was used to enhance the current convic-
tion. The Dilworth court, id. at 501, found
that a state application challenging enhancing
convictions tolled the limitations period for
filing a federal petition challenging the current
conviction. The Dilworth petitioner both (1)
plainly stated in his state applications that he
was challenging the prior conviction insofar as
it was being used to enhance his current one
and (2) raised the same claims in his state and
federal petitions. Id.
We decline Godfrey’s invitation to equate
the set of facts with those in Dilworth, and we
instead rely on an alternative rationale in
affirming.7 The Dilworth petitioner’s state
habeas application alleged that he received
ineffective assistance of counsel with respect
to his expired conviction. That court stated
that “[c]ommon sense dictates that Dilworth’s
second state habeas conviction challenged a
‘pertinent judgment or claim’ under the plain
language of Section 2244(d)(2).”
Neither of Godfrey’s October 2001 state
postconviction applications purports to chal-
lenge his current conviction—the subject of his
§ 2254 petition. The text of his federal
petition incorporates claims from his Decem-
ber 2000 state habeas application challenging
the expired convictions used for enhancement
purposes.
On the facts of this case, Godfrey’s October
2001 applications also did not challenge a
pertinent judgment for tolling purposes. Our
decision in this regard is, however, quite
limited. We so decide only because, on the
instant facts, it is impossible to construe God-
frey’s October 2001 state petitions as chal-
lenging the enhanced conviction. In Dilworth,
215 F.3d at 501, the court construed the pe-
titioner’s state applications as challenges to the
expired convictions insofar as they questioned
the current conviction in spite of cosmetic
wording to the contrary. We did so because
we were “unpersuaded that these minor
differences warrant the conclusion that Dil-
worth’s state habeas application was not . . .
[properly filed] pursuant to section 2244-
(d)(2).” Id. It is worth noting that the Dil-
worth court’s inquiry focused on whether the
application was “properly filed” and not on
whether it challenged a pertinent judgment or
claim; but the fact that we held the state appli-
cation to toll limitations suggests that, at least
implicitly, we thought that the application in-
deed made such a challenge.
Godfrey, on the other hand, filed a habeas
petition in December 2000 challenging the fact
that his 1998 sentence had been inappro-
priately enhanced by invalid convictions. His
October 2001 postconviction applications
challenged those convictions themselves. We
cannot construe the October 2001 applica-
tions as the Dilworth court construed the
applications before it. Because Godfrey filed
an application challenging the expired convic-
7 The state encourages us to refuse to treat
Dilworth as controlling, but for a different reason.
The state urges that Coss overrules Dilworth. For
the reasons discussed above, Coss deals with
whether a state petition must include a cognizable
federal claim, not whether such a claim (or failure
to make it) in a state petition tolls the applicable
statute of limitations. The state devotes consider-
able time attempting to re-cast Coss’s ruling on a
petitioner’s ability to state cognizable claims as a
ruling on the types of state post-conviction pro-
cedures that toll limitations.

-- 6 of 8 --

7
tions for enhancement purposes in December
2000, we cannot interpret the October 2001
application as making precisely the same
attack. For those reasons we must construe
the application as challenging different judg-
ments (the expired convictions),8 and, for
reasons we explain, prudence counsels against
interpreting those applications as challenges to
a pertinent claim.
C.
The remaining, and indeed most important,
inquiry, then, is whether Godfrey’s state
petitions qualify as challenging a “pertinent
claim” under § 2244(d)(2). Again, Dilworth
does not control, because that petitioner’s
state claims were construed as attacking an
enhancement of the current conviction rather
than the expired ones themselves. The Dil-
worth court noted that the state petitions
obviously challenged a pertinent judgment, and
the court made no attempt to determine
whether they also challenged a pertinent claim.
See id. That is the task before us here.
At least one circuit has found that an appli-
cation relating to an expired state sentence
used to enhance a current conviction consti-
tutes a “pertinent claim” for tolling purposes.
See Smith v. Duncan, 297 F.3d 809, 814 (9th
Cir. 2002). We nonetheless decline to find
Godfrey’s October 2001 state applications to
be challenges to the “pertinent claim,” but we
distinguish the instant facts from those in
Smith.
Our decision is narrow, however, and
should not be interpreted categorically to
time-bar all challenges to expired state convic-
tions as beyond the “pertinent claim” language
of § 2244(d)(2). We instead limit our reason-
ing to situations, such as here, in which the
petitioner previously submitted a prior state
postconviction application (attacking the cur-
rent conviction) making precisely the same
substantive claims that he makes in his current
ones (attacking the expired convictions).9 In
Smith, the petitioner did not submit multiple
state petitions making the same underlying
substantive claims. See id. at 811-12.
Allowing the limitations period to toll in
these sorts of situations would encourage
defendants to make entirely redundant argu-
ments in state court, styled in the first effort as
attacks on expired convictions insofar as they
are used to enhance a current sentence and, on
the second, as attacks on the expired convic-
tions directly. Under Godfrey’s theory, the
more enhancing convictions a petitioner has,
the more tolling time he can accumulate before
filing a federal petition. Habitual criminals
8 In the cases previously cited discussing tolling
status where the petitioner advanced a non-cog-
nizable legal claim (see note 5, supra), all of the
state applications attacked the same judgment at-
tacked in the federal petitions. The facts of this
case, however, cannot support such an interpre-
tation of Godfrey’s October 2001 state applica-
tions. That logical leap is always achieved by con-
struing the state applications regarding expired
convictions as challenges to enhanced current ones.
In light of his December 2000 postconviction
application, however, Godfrey’s petition can bear
no such interpretation.
9 Attacks on expired convictions may be cap-
able of tolling the limitations period, but only
where a court may construe those applications as
raising a pertinent claim. Here, where Godfrey’s
October 2001 applications made precisely the same
arguments that his December 2000 applications
did, and where the December 2000 applications
were styled as an attack on the expired convictions
insofar as they were used to enhance Godfrey’s
sentence, tolling should not be allowed.

-- 7 of 8 --

8
would enjoy a dramatic advantage over
first-time offenders in the sense that they
would have more enhancing convictions
available to toll limitations under § 2244-
(d)(2). Although such considerations may
justify a more sweeping ruling—that state
postconviction proceedings challenging ex-
pired convictions should not toll limitations
under any circumstances—at this time we
merely adopt the more limited rationale gov-
erning situations in which the validity of the
expired convictions has already been attacked
in a state post conviction objection to the
enhanced sentence.
IV.
Godfrey argues that because Coss was
decided after he sought state postconviction
relief, it should not be retroactively applied to
him in a manner that he alleges violates the Ex
Post Facto Clause. This argument is unavail-
ing on several fronts, but we nonetheless
decline to reach it on the merits.10
We need not rely on the retroactive appli-
cation of Coss to rule that Godfrey’s § 2254
petition is time-barred. We instead rely on
analysis articulated in part III, supra, that
Godfrey’s October 2001 state applications did
not challenge a “pertinent judgment or claim”
within the meaning of § 2244(d)(2).
AFFIRMED.
10 The ex post facto claim is frivolous. For an
ex post facto violation to occur, a new law must
create a sufficient risk of increasing the punishment
attached to the crimes. See Warren v. Miles, 230
F.3d 688, 692 (5th Cir. 2000). Coss did not
announce a new law that increased Godfrey’s
punishment for his burglary conviction. Of course,
one could reason that the expected value of his sen-
tence increased as a result of the Coss presumption
against challenges to sentences enhanced on the
basis of expired convictions, but that connection is
far too attenuated to merit endorsement here.

-- 8 of 8 --