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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 01-20939
Summary Calendar

WILLIAM DEAN CRUTCHER,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Texas

August 28, 2002
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:
William Dean Crutcher, Texas prisoner # 780331, appeals from
the dismissal, as time-barred, of his 28 U.S.C. § 2254 application.
A certificate of appealability (COA) was granted on the issue of
whether the district court erred in holding that Federal Rule of
Civil Procedure 6(e) does not apply to the calculation of the one-
year limitations period under 28 U.S.C. § 2244(d).
Crutcher was convicted in Texas state court, and, after his
state court appeals were denied, he filed a petition for writ of
certiorari to the United States Supreme Court. The Supreme Court

denied his petition on April 19, 1999.1 On April 19, 2000,
Crutcher filed a state court habeas application. The Texas Court
of Criminal Appeals denied his application on December 6, 2000.
Crutcher filed his instant 28 U.S.C. § 2254 application in federal
court on December 11, 2000.
Rule 6(e) adds three days to the prescribed period "[w]henever
a party has the right or is required to do some act or take some
proceedings within a prescribed period after the service of a
notice or other paper upon the party and the notice or paper is
served upon the party under Rule 5(b)(2)(B), (C), or (D)."2
Crutcher first argues that this provision is applicable to the
"front end" of his limitations period with respect to the Supreme
Court's mailed notification of the denial of his petition for writ
of certiorari. He contends that 28 U.S.C. § 2244(d)(1)(A) is
ambiguous because it does not make explicit reference to a decision
date or filing date as the triggering event for the statute of
limitations.3
1 Crutcher v. Tex., 526 U.S. 1074 (1999).
2 FED. R. CIV. P. 6(e).
3 28 U.S.C. § 2244(d) provides:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
2

We conclude that Rule 6(e) does not apply to the calculation
of the one-year limitations period under 28 U.S.C. § 2244(d)(1)(A).
The one-year statute of limitations on habeas applications begins
to run under 28 U.S.C. § 2244(d)(1)(A) when the judgment of
conviction becomes final, which, in the case of a petitioner who
has filed a timely petition for writ of certiorari to the Supreme
Court, occurs "when the Supreme Court denies the petition for writ
of certiorari."4 In view of our binding holdings in this regard,
we cannot agree that Rule 6(e) is applicable simply because
notification of the denial is provided by mail. For purposes of
the applicability of Rule 6(e), "the fact that notice is to be
served by mail is not dispositive," but, rather, "[t]he correct
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
(2) The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.
4 Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002)
(per curiam) (applying the rule to 28 U.S.C. § 2244(d)(1)(A) on a
state prisoner's petition); see also United States v. Thomas, 203
F.3d 350, 356 (5th Cir. 2000) (applying the rule to 28 U.S.C. §
2255(1) on a federal prisoner's petition).
3

inquiry is whether the required actions must be performed within a
prescribed period of filing or of service" and, "[i]f the act is to
be taken after filing, the time for action begins to run from that
date."5
28 U.S.C. § 2244(d)(1)(A) looks to when a judgment becomes
final, not when the petitioner becomes aware that the judgment is
final.6 In the context of judgments of conviction for which a
petition for writ of certiorari to the Supreme Court is filed, we
look to when the Supreme Court denied the petition, which occurs on
the date the order denying the petition is issued, i.e., filed, by
the Clerk of the Supreme Court, not when notification of this order
is mailed to or received by the petitioner.7 Rule 6(e) therefore
does not apply to the statute of limitations period under 28 U.S.C.
§ 2244(d)(1)(A) because "`Rule 6(e) does not apply to time periods
that begin with the filing in court of a judgment or an order.'"8
5 Lauzon v. Strachan Shipping Co., 782 F.2d 1217, 1220 (5th
Cir. 1985); accord Hong v. Smith, 129 F.3d 824, 824-25 (5th Cir.
1997).
6 See Giesberg, 288 F.3d at 270 (holding that "the key to" 28
U.S.C. § 2244(d)(1)(A) "is the finality of the underlying
judgment"). See generally Lookingbill v. Cockrell, 293 F.3d 256,
262 (5th Cir. 2002) ("Federal courts interpret the federal time
period as running from the event described rather than from receipt
of notice.") (citing Halicki v. La. Casino Cruises, Inc., 151 F.3d
465, 467 (5th Cir. 1998); Lauzon, 782 F.2d at 1220).
7 See Giesberg, 288 F.3d at 271; Thomas, 203 F.3d at 355-56.
8 Halicki, 151 F.3d at 468 (quoting 1 JAMES W. MOORE ET AL.,
MOORE'S FEDERAL PRACTICE § 6.05[3], at 6-35 (3d ed. 1998)).
4

Crutcher also argues that Rule 6(e) is applicable to the "back
end" of his limitations period because the Texas Court of Criminal
Appeals did not postmark the notification of its denial of
Crutcher's state habeas application until two days after the
judgment was issued. We are unable to perceive how the Texas
court's alleged delay in postmarking the denial implicates the
applicability of Rule 6(e), but, in any event, we find no merit in
Crutcher's argument insofar as he is arguing that Rule 6(e) should
apply to extend the period for tolling under 28 U.S.C. §
2244(d)(2).9 To the extent that Crutcher argues for the
applicability of Federal Rule of Civil Procedure 6(a) or for
equitable tolling, his arguments cannot be considered as these
issues are not within the scope of the COA granted by this court,
which is limited to the question of whether Rule 6(e) applies.10
We conclude that Rule 6(e) does not apply to the 28 U.S.C. §
2244(d)(1)(A) limitations period. Accordingly, the judgment of the
district court is AFFIRMED.
9 See Phillips v. Donnelly, 216 F.3d 508, 511 & n.3 (5th
Cir.) (per curiam) (holding that, under 28 U.S.C. § 2244(d)(2), a
state habeas petition is not "pending," and thus statutory tolling
does not apply, between the date of the state court's denial of the
petition and the date of the prisoner's receipt of notice of the
denial), reh'g granted in part on other grounds, 223 F.3d 797 (5th
Cir. 2000).
10 See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)
(holding that "COAs are granted on an issue-by-issue basis, thereby
limiting appellate review to those issues alone").
5