Unreported / Non-Citable
Background
Texas prisoner Steven Lawrence Hopper filed a petition for federal habeas relief under 28 U.S.C. § 2254. The district court dismissed the petition as time barred.
The Fifth Circuit granted a certificate of appealability limited to whether the district court had used the correct filing date for Hopper’s state collateral-review application when calculating statutory tolling under 28 U.S.C. § 2244(d)(2). Hopper also filed motions seeking appointment of counsel, review of grand-jury documents and state counsel’s files, an evidentiary hearing, bail pending appeal, and default judgment.
The Court’s Holding
The Fifth Circuit affirmed. It held that Hopper waived the only issue covered by the certificate of appealability because neither his initial brief nor his supplemental brief addressed whether the district court had correctly determined the filing date of his state collateral-review application for tolling purposes.
The court declined to consider Hopper’s conclusory statutory-tolling argument because he raised it only in his reply brief. Concluding that Hopper had not shown reversible error, the court affirmed the judgment and denied all pending motions.
Key Takeaways
- A habeas appellant must brief the issue specified in the certificate of appealability or risk waiving appellate review.
- An argument first raised in a reply brief generally will not be considered.
- The Fifth Circuit left the time-bar dismissal in place and denied Hopper’s ancillary motions.
Why It Matters
The decision underscores that obtaining a certificate of appealability does not preserve an issue by itself. A petitioner must squarely address the certified question in the opening briefing.
For habeas practitioners, the ruling also illustrates the importance of presenting statutory-tolling arguments fully and at the proper stage of an appeal, particularly when the timeliness of a federal petition turns on the filing date of a state collateral proceeding.