United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT December 16, 2004

Charles R. Fulbruge III No. 02-41690 Clerk

GILBERT ROY GOODWIN,

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 Eastern District of Texas (1:02-CV-578)

Before BARKSDALE, GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

This appeal is before us following our remand to the district

court to rule on the State’s time-bar claim. Gilbert Goodwin,

Texas prisoner # 749472, appeals, pro se, the denial of his

habeas petition, which claims his parole-denial

violated the United States Constitution’s Ex Post Facto Clause.

When the petition was first before the district court, and because

the State had not been served, the district court did not address

the State’s time-bar claim, which it raises here: whether

Goodwin’s petition was time-barred under 28 U.S.C. §

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2244(d)(1)(D). Accordingly, because the record was not sufficient

for us to decide that issue, we retained jurisdiction, but remanded

to the district court for it to decide the State’s time-bar claim

under § 2244(d)(1)(D). Goodwin v. Dretke, 02-41690 (5th Cir. 29

June 2004) (Goodwin I). Apparently applying § 2244(d)(1)(A)

instead, the district court concluded Goodwin’s claim was time

barred. We REMAND for a determination of the time-bar claim under

§ 2244(d)(1)(D).

I.

In 1993, Goodwin was convicted in Texas of felony aggravated

sexual assault. Goodwin has been denied parole twice. On 25 June

2002, more than a year after the second parole-denial, Goodwin

filed a state habeas application, claiming: the Board of Pardons

and Paroles denied him parole using a procedure enacted after the

commission of his offense, thereby violating the Ex Post Facto

Clause. Without written order, the Court of Criminal Appeals

denied his application on 14 August 2002.

Goodwin’s federal habeas petition was filed later in August

2002. As noted, the State was not served in district court and,

therefore, did not raise the time-bar claim now at issue. The

district court denied habeas relief. On appeal, the State raised

the time-bar claim. In Goodwin I, we remanded for a determination

on that issue. The district court concluded the petition is time-

2 barred. In so ruling, it concluded that Goodwin is not entitled to

equitable tolling.

II.

Because Goodwin filed his § 2254 habeas petition after the

effective date of the Antiterrorism and Effective Death Penalty Act

(AEDPA) that Act controls. E.g., Scott v. Johnson,

(5th Cir. 2000), cert. denied,

(2001). Under

AEDPA, § 2244(d), there is a one-year limitations period for

federal petitions brought by state prisoners. This period runs

from the latest of: under subpart (A), “the date on which the

judgment became final”; under subpart (B), “the date on which the

impediment to filing an application created by [unconstitutional]

State action [was] removed”; under subpart (C), “the date on which”

the Supreme Court “initially recognized” the constitutional right,

“if the right ... [is] made retroactively applicable to cases on

collateral review”; or under subpart (D), “the date on which the

factual predicate of the claim ... could have been discovered

through the exercise of due diligence”.

(d)(1)(A)-

(D). The period is tolled while a state habeas petition for the

claim is pending.

(d)(2).

As discussed in Goodwin I: the State asserts, and Goodwin

does not dispute, that, for limitations purposes, § 2244(d)(1)(D)

governs the timeliness vel non of the filing of his petition; our

sister circuits have applied § 2244(d)(1)(D) to claims predicated

3 on parole decisions; and we adopted that approach. Goodwin I at 4.

Accordingly, the one-year filing period began to run on the date

Goodwin could have “discovered” the “factual predicate of [his]

claim” for the parole-denial “through the exercise of due

diligence”.

(d)(1)(D). Depending upon when

Goodwin’s one-year limitations period began, that period was

possibly tolled from 25 June 2002 to 14 August 2002, while his

state habeas petition was pending.

(d)(2).

In May 1991, when Goodwin committed the sexual assault,

parole decisions were made by panels composed of three Board

members and required a majority vote. TEX. CRIM. PROC. art. 42.18 §

7(e) (West 1991). A new procedure, enacted in 1995, requires the

votes of two-thirds of the entire Board (15 members) to grant

parole. TEX. GOV’T CODE ANN. § 508.046 (West 2001).

The new procedure was used for both of Goodwin’s parole-

denials. Goodwin does not contend he would have been granted

parole in his first hearing under the former procedure. Rather,

Goodwin contends: the voting records from his June 2001 parole-

denial indicate that all three members who would have been assigned

to review him under the former procedure voted in favor of parole;

therefore, he would have been granted parole under that procedure.

Accordingly, Goodwin claims the application of the new procedure to

his 2001 parole proceeding violates the Ex Post Facto Clause

because it increased his sentence. Therefore, Goodwin asserts that

4 his habeas claim did not arise until his second parole-denial in

June 2001. In the alternative, Goodwin requests equitable tolling.

Goodwin I held that, in order to avoid deciding the

substantive law of the Ex Post Facto Clause, the time-bar issue had

to be decided first. Goodwin I at 6. Along that line, various

collateral factual issues needing to be decided were discussed, for

resolution on remand to the district court. Id. at 6-8.

Pursuant to the Goodwin I remand, the district court found

that Goodwin’s habeas claim arose on 7 June 2001, the date of his

second parole denial, rather than on 4 February 1999, the date of

his first parole denial. Citing Roberts v. Cockrell,

(5th Cir. 2003), the district court determined: the judgment

became final when the Parole Board reached its decision on 7 June

2001; and the date Goodwin was notified of his parole denial was

irrelevant. When a judgment becomes final is the relevant inquiry

under subpart (A), not subpart (D). Likewise, Cockrell, cited by

the district court, involves application of subpart (A).

Therefore, we assume the district court assessed the timeliness of

Goodwin’s claim under subpart (A).

The law of the case from Goodwin I, however, is that

subpart(D), not subpart (A), applies to this claim because it is

predicated on a parole hearing. In order to make a determination

under subpart (D), the district court must determine “the date on

which the factual predicate of the claim could have been discovered

5 by due diligence”.

(d)(1)(D). That is, the

district court will have to find when Goodwin could have

discovered, by the exercise of due diligence, his second parole

application had been denied.

As noted, Goodwin I describes other factual issues that must

be decided by the district court in deciding the time-bar claim,

such as when Goodwin’s federal habeas petition was filed. (On

remand, the district court assumed it was filed on 20 August 2002.

Goodwin v. Director, TDCJ-CID, 1:02-CV-578, at 2 n.1 (E.D.Tex. 26

Oct. 2004).) Of course, the district court may decide that other

issues must be resolved as well. In this regard, the district

court may decide additional evidence may be filed and an

evidentiary hearing is required, especially in the light of the

State’s not being able earlier to file evidentiary material in

district court because it was not served before Goodwin’s habeas

petition was denied by the district court.

As also noted, the district court also determined on remand

that Goodwin was not entitled to equitable tolling. Following the

district court’s decision on this second remand, when this matter

is returned to our court for review, Goodwin may, of course,

challenge that no-equitable-tolling decision.

III.

For the foregoing reasons, we retain jurisdiction of this

appeal, but REMAND to the district court for the following

6 determinations: (1) applying § 2244(d)(1)(D), the date on which

Goodwin could have discovered, using due diligence, that he was

denied parole, following his second parole hearing; and (2) whether

Goodwin’s petition is time-barred. (On 9 November 2004, Goodwin

filed a petition for panel rehearing, which we consider a motion to

remand. That portion of Goodwin’s motion requesting remand for a

determination under § 2244(d)(1)(D) is DENIED as moot. That

portion of Goodwin’s motion concerning equitable tolling is DENIED

as premature.)

REMANDED

7