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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 98-41293
__________________
RODNEY JAMES DILWORTH,
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
Eastern District of Texas
______________________________________________
June 19, 2000
Before JONES and BENAVIDES, Circuit Judges, and WALTER,* District
Judge.
BENAVIDES, Circuit Judge:
Rodney James Dilworth, a Texas state prisoner, appeals the
district court's dismissal of his 28 U.S.C. § 2254 petition as time
-barred. Concluding that Dilworth's state habeas application
(challenging a prior conviction used to enhance his current state
* District judge of the Western District of Louisiana,
sitting by designation.

sentence) tolled the period of limitation within the meaning of 28
U.S.C. § 2244(d)(2), we vacate the district court's dismissal of
his petition and remand for further proceedings.
I.
PROCEDURAL HISTORY
In 1987, Dilworth pleaded guilty to the felony offense of
aggravated assault and received a three-year sentence of
imprisonment. Five years later, in 1992, a jury found him guilty
of attempted murder and unauthorized use of a motor vehicle. Both
of those counts contained an enhancement paragraph regarding the
prior conviction of aggravated assault. The jury found both of the
enhancement paragraphs true, and Dilworth was sentenced to 60 years
of imprisonment for the unauthorized use of a motor vehicle
conviction and 99 years of imprisonment for the attempted murder
conviction.
After Dilworth's 1992 convictions were affirmed on direct
appeal, he filed a state habeas application challenging those
convictions, which the Texas Court of Criminal Appeals denied in
May of 1995. On April 5, 1996, Dilworth filed a state habeas
application challenging the 1987 conviction for aggravated assault
on the basis of ineffective assistance of counsel. He asserted
that as his 1987 conviction was used to enhance his later
sentences, the state court "retain[ed] jurisdiction" to review the
habeas application attacking his 1987 conviction based on
ineffective assistance. On June 11, 1997, the Court of Criminal
Appeals denied the application.
2

In July of 1997, Dilworth filed a federal habeas petition in
district court.1 In that § 2254 petition, Dilworth challenged his
1987 guilty-plea conviction based upon ineffective assistance of
counsel. The respondent filed a motion to dismiss the petition as
time-barred. The magistrate judge concluded that Dilworth could
not challenge his 1987 conviction because he was no longer serving
his sentence for that conviction and that he could not challenge
the enhancement provision of his 1992 convictions because the time
for filing a federal habeas challenge to the 1992 convictions had
expired under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). Over Dilworth's objections, the district court
adopted the report and recommendation and dismissed Dilworth's
petition as time-barred.
Dilworth filed a notice of appeal, which the district court
construed as a motion for a certificate of appealability (COA) and
denied. Dilworth then sought a COA from this Court. We granted a
COA with respect to whether Dilworth's second state habeas
application tolled the AEDPA's limitation period.
II.
ANALYSIS
Dilworth maintains that the district court erred in dismissing
his habeas petition as time-barred, arguing that during the time in
1 Originally, the petition was filed in the Northern District
of Texas. However, because these 1992 convictions were imposed in
a state court which is not located in the Northern District of
Texas and Dilworth is not presently in custody in this district,
the district court transferred the petition to the Eastern District
of Texas. See 28 U.S.C. section 2241(d).
3

which his second state habeas application was pending, the period
of limitation under § 2244 was tolled. In relevant part, § 2244
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--
(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;
*
*
*
(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.
Dilworth's convictions became final prior to the April 24,
1996 effective date of the AEDPA. We have held that prisoners
challenging convictions that became final prior to the AEDPA's
effective date are accorded one year after the effective date of
the AEDPA (April 24, 1997) to file for relief under § 2254.
Flanagan v. Johnson, 154, F.3d 196, 202 (5th Cir. 1998). As the
respondent asserts, the earliest date that Dilworth's federal
petition could be deemed filed is July 11, 1997--more than two
months after the deadline.
During the one-year grace period, however, Dilworth filed an
application for state habeas relief challenging the 1987
4

conviction, which was used to enhance the sentences imposed as a
result of his 1992 convictions. More specifically, Dilworth filed
that state habeas application on April 5, 1996, and the Court of
Criminal Appeals denied it on June 11, 1997. Approximately one
month later, he filed the instant petition. If the state habeas
application tolled the period of limitation, the instant petition
was timely filed. The question, therefore, is whether that
application was "a properly filed application for State post-
conviction . . . with respect to the pertinent judgment or claim"
pursuant to § 2244(d)(2).
The magistrate judge's report, which was adopted by the
district court, provided that Dilworth could not challenge the 1987
conviction because that sentence had expired, i.e., he was no
longer in custody pursuant to that conviction. We assume that
habeas corpus relief would not be available with respect to
Dilworth's challenge to his 1987 conviction if it had not been used
to enhance the sentence he is currently serving. See Carter v.
Hardy, 526 F.2d 314, 315 (5th Cir. 1976). However, a "habeas
petitioner may attack a prior conviction used to enhance his
punishment"--the circumstance here. Herbst v. Scott, 42 F.3d 902,
905 (5th Cir. 1995) (citation omitted). We have explained that the
"jurisdictional requirement of `in custody' is satisfied by reading
the petition as a challenge to the current conviction." Id.
(citing Maleng v. Cook, 490 U.S. 488, 493-94, 109 S.Ct. 1923, 1926-
5

27 (1989)).
Additionally, the magistrate judge's report provided that
Dilworth's second state habeas application that was pending during
the grace period did not toll the limitation period because it
challenged the 1987 conviction and not the 1992 convictions. The
magistrate judge noted that if Dilworth had challenged the
enhancement provision of his 1992 sentences in his second state
habeas application, the state court would have dismissed it as an
abuse of the writ pursuant to § 4 of article 11.07 of the Texas
Code of Criminal Procedure. Under that scenario, the magistrate
judge posited, Dilworth would have been procedurally barred from
raising the claims presented in that application in a federal
habeas petition.
Subsequent to the district court's dismissal of Dilworth's
petition, we clarified that even though a second state habeas
application was dismissed as an abuse of the writ pursuant to § 4
of article 11.07 of the Texas Code of Criminal Procedure, the state
habeas application tolled the limitation period because it was a
properly filed state application within the meaning of section
2244(d)(2). Villegas v. Johnson, 184 F.3d 467, 469-70 (5th Cir.
1999); see also Smith v. Ward, 209 F.3d 383 (5th Cir. 2000)
(although state habeas application was denied as time-barred under
Louisiana procedural law, we concluded that it was "properly filed"
within the meaning of section 2244(d)(2)). Therefore, contrary to
6

the district court's reasoning, whether the state habeas
application would have been dismissed as an abuse of the writ is
not relevant to § 2244(d)(2).2
The respondent argues that Dilworth's second state habeas
application cannot be construed as a properly filed challenge to
his current sentences for his 1992 convictions because Texas law
mandates that a challenge to a conviction must be filed in the
court in which the applicant was convicted. Further, the
respondent indicates that Dilworth's second state habeas
application should have been filed in the court that rendered the
1992 convictions. However, it appears that if Dilworth had sought
to challenge his 1987 Dallas conviction in the Collin County court,
the Collin County court would have transferred the case to the
Dallas County court. See Ex parte Harp, 561 S.W.2d 180, 180-81
(Tex.Crim.App. 1978) (although court reviewed a habeas challenge to
an expired-sentence conviction that had been used to enhance a
sentence in a later conviction, the court refused to review the
later conviction until another habeas application was filed in the
court where the later conviction was obtained); Ex parte Alexander,
861 S.W.2d 921, 922-23 (Tex.Crim.App. 1993) (subsequent case
holding that an application for habeas corpus "filed in a court
2 The holding in Villegas also renders without merit the
respondent's contention that, by filing his second application for
state habeas relief in Dallas (as opposed to Collin County),
Dilworth essentially circumvented Texas's abuse of the writ
provision.
7

other than the convicting court will not be dismissed . . . but,
rather, remanded to the court in which it was filed, with
instructions that the district clerk of that county transfer the
writ to the court of conviction"). In light of Texas habeas
procedure, it appears that Dilworth filed his state habeas
challenge to the 1987 conviction in the proper state trial court.
Moreover, the state trial court did address the merits of his
claim.
Boiled down to its essence, the respondent's argument simply
highlights the subtle incongruity between Texas habeas procedural
rules and federal case law that requires courts to construe a
habeas petitioner's challenge to a conviction with an expired
sentence as a challenge to the petitioner's current sentence
enhanced by the prior conviction. We are unpersuaded that these
minor differences warrant the conclusion that Dilworth's state
habeas application was not a properly filed state habeas
application pursuant to section 2244(d)(2).
Indeed, because Dilworth's second state habeas application was
"accorded some level of judicial review" by the state courts, it is
considered a "properly filed application" under section 2244(d)(2).
Villegas, 184 F.3d at 470 n.2. Further, Dilworth's second state
habeas application alleged that he received ineffective assistance
of counsel with respect to his 1987 conviction, which is precisely
what he is alleging in the instant federal petition. Common sense
8

dictates that Dilworth's second state habeas application was a
challenge "to the pertinent judgment or claim" under the plain
language of section 2244(d)(2). Therefore, the time during which
Dilworth's second state habeas application was pending tolled the
limitation period under section 2244, rendering the instant federal
petition timely filed.3
3 Finally, in a footnote, the respondent argues that if we
construe Dilworth's second state writ as challenging his 1992
convictions, he has failed to exhaust his state remedies because he
did not file the writ in Collin County. We rejected a similar
claim in Escobedo v. Estelle, 650 F.2d 70 (5th Cir. Unit A),
modified on other grounds, 655 F.2d 613 (1981). Escobedo, a
section 2254 petitioner, had a 1970 Texas conviction, which had
been used to enhance his 1977 Texas conviction. The sentence for
the 1970 conviction had been served. Prior to filing his federal
petition, Escobedo had applied for state habeas relief collaterally
attacking the 1970 conviction on the grounds that his guilty plea
was involuntary and made without effective assistance of counsel.
The Court of Criminal Appeals denied his application. Escobedo
filed a section 2254 petition on the same grounds urged in his
state writ. At the time he filed the federal petition, Escobedo's
direct appeal from his 1977 conviction was pending. The State
argued that Escobedo's state court remedies could not be deemed to
have been exhausted unless the Court of Criminal Appeals rejected
the same claim in his direct appeal from the 1977 conviction. We
concluded that Escobedo's state writ fairly presented the claim
and, therefore, it was exhausted. 650 F.2d at 74.
Likewise, in the instant case, Dilworth fairly presented his
claim that his 1987 guilty plea was obtained without the effective
assistance of counsel to the Court of Criminal Appeals.
Additionally, "it has been held that exhaustion is not necessary
where resort to state remedies would be futile, because the
necessary delay before entrance to a federal forum which would be
required is not justified where the state court's attitude towards
a petitioner's claims is a foregone conclusion." Carter v.
Estelle, 677 F.2d 427, 446 (5th Cir. 1982). More specifically, the
"futility exception applies when, as here, the highest state has
recently decided the same legal question adversely to the
petitioner." Fisher v. State of Texas, 169 F.3d 295, 303 (5th Cir.
1999). We therefore reject the respondent's contention that
9

For the above reasons, we hold that Dilworth's state habeas
application tolled the period of limitation under section
2244(d)(2), rendering timely the filing of the instant petition.
We therefore VACATE the dismissal of Dilworth's 28 U.S.C. § 2254
petition and REMAND for further proceedings.
VACATED AND REMANDED.
Dilworth has not exhausted his state remedies with respect to the
claim at issue in the instant federal petition.
10