Pardo v. Johnson

U.S. Court of Appeals for the Fifth Circuit March 1, 2000

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 98-20971 Summary Calendar __________________

JOSE JESUS PARDO,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-97-CV-3068) _________________________________________________________________ March 1, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:1

Jose Jesus Pardo (Texas prisoner #626222) contests the

dismissal of his

28 U.S.C. § 2254

petition as time-barred under the

one-year limitations period of the Antiterrorism and Effective

Death Penalty Act (AEDPA),

28 U.S.C. § 2244

(d). Pardo was granted

a certificate of appealability (COA) on the following issue:

whether, in the light of the doctrine of equitable tolling, the

district court properly dismissed the petition as time-barred.2

1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 2 In his principal brief, Pardo presents the merits of his constitutional claims. Those claims exceed his COA. See Lackey v. Johnson,

116 F.3d 149, 151-52

(5th Cir. 1997). In any event, we lack jurisdiction to consider them, because the district court did Pardo contends that such tolling should apply, because: a

prison transfer prevented him from receiving notice that his prior

filed § 2254 petition, that he believed was still pending, had been

dismissed without prejudice in January 1995; the district court

failed to resend copies of its dismissal order and judgment after

receiving his change-of-address notice; he did not learn about the

dismissal until he received a copy of the district court’s docket

sheet in response to his July 1997 letter of inquiry; and he filed

his second petition shortly thereafter.

The record reflects that, after Pardo’s first petition was

dismissed without prejudice, the district court clerk attempted to

send him copies of the order of dismissal and final judgment. That

attempt proved unsuccessful, because the clerk had not received

Pardo’s change-of-address notice. Shortly thereafter, Pardo

inquired by letter to the district court about the status of his

case and requested the appointment of counsel. Although Pardo

received no response, he waited approximately 26 months before he

sent a second letter in July 1997 and learned that his first

petition had been dismissed. The one-year grace period within

not address them as an alternative to its procedural holding. See Whitehead v. Johnson,

157 F.3d 384, 387-88

(5th Cir. 1998). For the first time in his reply brief, Pardo raises two new issues regarding the timeliness of his § 2254 petition. Those issues, one of which involves equitable tolling and the other of which involves an unconstitutional state impediment, are both based on the failure of his prison law library to receive a copy of AEDPA until 14 April 1997. Because those issues were not raised in Pardo’s initial COA application and because they are raised for the first time in his reply brief, they are not properly before us. See Lackey,

116 F.3d at 151-52

; Yohey v. Collins,

985 F.2d 222, 225

(5th Cir. 1993).

- 2 - which Pardo could have filed a timely § 2254 petition expired in

April 1997, toward the end of that 26-month period. See Flanagan

v. Johnson,

154 F.3d 196, 199-200, 202

(5th Cir. 1998)(§ 2254

petitioners whose convictions became final prior to the AEDPA’s

effective date had until 24 April 1997 to seek federal habeas

relief).