After the intermediate state appellate court affirmed his state-court conviction, petitioner Gonzalez allowed his time for seeking discretionary review with the State’s highest court for criminal appeals to expire. Roughly six weeks later, the intermediate state appellate court issued its mandate. When Gonzalez subsequently sought federal habeas relief, the District Court dismissed Gonzalez’s petition as time barred by the 1-year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under 28 U. S. C. §2244(d)(1)(A), state prisoners have one year to file federal habeas petitions running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” The District Court held that Gonzalez’s judgment had become “final” when his time for seeking discretionary review in the State’s highest court expired, and that running the limitations period from that date, his petition was untimely.
Under AEDPA, a habeas petitioner must obtain a certificate of appealability (COA) to appeal a district court’s final order in a habeas proceeding. 28 U. S. C. §2253(c)(1). The COA may issue only if the petitioner has made a “substantial showing of the denial of a constitutional right,” §2253(c)(2), and “shall indicate which specific issue” satisfies that showing, §2253(c)(3). A Fifth Circuit judge granted Gonzalez a COA on the question whether his petition was timely. The issued COA, however, failed to “indicate” a constitutional issue. The Fifth Circuit affirmed, holding that Gonzalez’s petition was untimely because the limitations period begins to run for petitioners who fail to appeal to a State’s highest court when the time for seeking further direct review in the state court expires. The Fifth Circuit did not mention, and the State did not raise, the §2253(c)(3) defect. When Gonzalez petitioned this Court for review, the State argued for the first time that the Fifth Circuit lacked jurisdiction to adjudicate Gonzalez’s appeal based on the §2253(c)(3) defect.
