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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-10930
Summary Calendar

GILBERT G. YBANEZ
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 Northern District of Texas

*****************************************************************

No. 98-50487
Summary Calendar

ROLLAND E. LAWSON
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 Western District of Texas

March 8, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
In these consolidated cases, Ybanez and Lawson appeal the
dismissal of their federal habeas petitions as time-barred. We
reject their argument that the limitations bar of federal habeas
review of state convictions starts to run when the state rules on
habeas applications.
Ybanez's murder conviction became final March 17, 1988, when
the Texas Court of Criminal Appeals denied his petition for
discretionary review. Ybanez filed a state habeas application
September 4, 1992, which was denied by the Texas Court of Criminal
Appeals on February 10, 1993.
He filed a second state habeas application April 24, 1997,
which included a new claim that a jury instruction was
unconstitutional. The instruction had been upheld by the Texas
Court of Criminal Appeals in 1990, but the court reversed that
decision in 1994. The second application was dismissed as a
successive petition June 4, 1997.
Four months later, November 6, 1997, Ybanez filed a federal
habeas petition, which the district court dismissed as barred by
2

the AEDPA's one-year statute of limitations set forth in 28 U.S.C.
§ 2244(d)(1).
Lawson's murder conviction became final November 17, 1993,
when the Texas Court of Criminal Appeals denied his petition for
discretionary review. He filed a state habeas application July 24,
1996, which was denied December 11, 1996. Lawson's state habeas
application raised an ineffective assistance of counsel claim.
Lawson filed a federal habeas petition December 1, 1997, and the
magistrate judge recommended that it be dismissed as time-barred.
The district court adopted the recommendation.
Because Ybanez's and Lawson's convictions became final before
the enactment of the AEDPA, each had until April 24, 1997 to file
a federal habeas petition. See Flanagan v. Johnson, 154 F.3d 196,
201 (5th Cir. 1998)(establishing that date as the deadline for
petitioners whose convictions were final before enactment of the
AEDPA). Under 28 U.S.C. § 2244(d)(1)(A), a pending state habeas
application tolls the statute of limitations created by the AEDPA.
Even with tolling for the disposition of their state habeas
applications, the AEDPA's statute of limitations had expired for
both petitioners, and we affirm the dismissal of their petitions on
that ground.
The petitioners argue that their claims are not time-barred
because the rulings on their state court habeas applications are
the factual predicates of their federal habeas petitions under 28
3

U.S.C. § 2244(d)(1)(D).1 Ybanez argues that he was denied due
process of law by the state court's refusal to consider his second
habeas application, and that the state court decision is the
factual predicate of his purely legal question. Lawson argues that
his ineffective assistance of counsel claim presents a mixed
question of law and fact--whether the state court's application of
law to facts was unreasonable--and that the state court decision
is the factual predicate of his federal petition. The petitioners
argue that since they could not present federal habeas claims on
these decisions until after the state courts rendered them, the
one-year statute of limitations under the AEDPA began to run from
the dates of the state court decisions.
Section 2244(d)(1)(D) provides for equitable tolling when the
facts on which a federal habeas claim is based would not have been
discovered by a duly diligent petitioner. See, e.g., Fisher v.
Johnson, 174 F.3d 710, 715 n.14 (5th Cir.), reh'g denied, 189 F.3d
471 (5th Cir. 1999). These facts do not include asserted errors in
a state court's disposition of a state habeas application. Behind
1The section provides that:
(d)(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--
. . . .
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
4

the petitioners' language is an extraordinary proposition: the
factual predicate for their claims consists neither of evidence nor
events at trial but in the state court's rulings on their
constitutional claims. Congress granted petitioners one year to
file a federal habeas petition. It is, inter alia, one year from
the latest of the dates the factual predicate for the claim could
have been discovered or the conclusion of direct review. The
statute does not count the time a petitioner's state claim was
pending in the state court. This structure, fleshed out by many
federal decisions, would be turned upside down should we play this
game of recharacterization and semantics.
AFFIRMED.
5