TERRY R. MEANS, United States District Judge

In this action brought by petitioner Gery Wayne Taff under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:

1. The pleadings and record;

2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on November 15, 2001; and

3. The petitioner's written objections to the proposed findings, conclusions and recommendation (FCR) of the United States magistrate judge filed on December 5, 2001.

The Court, after de novo review, concludes that Taff's objections must be sustained, and that the recommendation of the magistrate judge that this case be dismissed as time-barred under 28 U.S.C. § 2244 should be rejected. The respondent must now file a supplemental answer within 30 days.

By this action, Taff challenges his August 9, 1999, judgment of conviction in the Criminal District Court Number One, Tarrant County, Texas, cause number 0689769D, for possession of a controlled substance. (Pet. ¶ 1-4.) Taff timely filed a notice of appeal on September 8, 1999. Ex parte Taff, No. 47,899-01 at 51. That appeal was dismissed for lack of jurisdiction in an opinion issued November 10, 1999. Id. at 53-54. Taff filed a state application for writ of habeas corpus on August 11, 2000, which was ultimately denied without written order by the Texas Court of Criminal Appeals on December 20, 2000. Id. at 2; at cover page. The instant petition, under the "mailbox rule," was constructively filed on March 5, 2001.

The magistrate judge determined that the applicable one-year period runs in this case 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." Taff timely sought direct review of his conviction by the filing of a notice of appeal on September 8, 1999, within 30 days of the August 9, 1999, date of judgment. His appeal was pending until the state court of appeals dismissed it on November 10, 1999, for want of jurisdiction, holding that because the notice of appeal was general in nature, it did not satisfy the requirements of Texas Rule of Appellate Procedure 25.2(b)(3) applicable to an appeal from a plea of guilty. Id. at 53-54.

Citing state law, the magistrate judge concluded that because the appeal was dismissed for want of jurisdiction, the time the appeal was pending should not be counted in determining when the one-year limitation on the filing of a petition under § 2254 commenced running under § 2244(d)(1)(A). (FCR at 4.) Although this Court recognizes the logic of the magistrate judge's analysis, the Court cannot adopt his recommendation because the resolution of finality under 28 U.S.C. § 2244 (d)(1)(A) must focus solely on the timeliness of the direct appeal or other measures taken by a petitioner in state court, not their jurisdictional adequacy.

Section 2244(d)(1) commences the running of a one-year limitations period upon the occurrence of the latest of four separate events including, at subparagraph (A), the event at issue in this case: the finality of the judgment of conviction. Subparagraph (A) is crafted to cover instances where direct review has been sought and completed ("conclusion of direct review"), and where direct appeal has either not been sought or has been started and later abandoned prior to conclusion ("expiration of the time for seeking such review.") The Court of Appeals for the Fifth Circuit recently issued an opinion clarifying how to determine "finality" under this statute:

We previously held that direct review includes a petition for writ of certiorari to the Supreme Court. Therefore, the "conclusion of direct review" is when the Supreme Court either rejects the petition for certiorari or rules on its merits. If the conviction does not become final by the conclusion of direct review, it becomes final by "the expiration of the time for seeking such review." We previously held that this includes the ninety days allowed for a petition to the Supreme Court following the entry of judgment by the state court of last resort. If the defendant stops the appeal process before that point, the conviction becomes final when the time for seeking further direct review in the state court expires.

With the benefit of this opinion, it is clear that in this case, because Taff stopped the appeal process before reaching the state court of last resort, the determination of finality must be considered under the umbrella of "the expiration of the time for seeking such review."

A case arising from facts closely analogous to those of this case is Royale v. Cockrell. There, the Honorable Joe Kendall of this Court adopted the magistrate judge's recommendation to deny a motion to dismiss on the basis of the one-year limitation of § 2244(d)(1). Texas inmate David Royale, like Taff, was convicted after he entered a plea of guilty. He appealed. Texas's Fifth Court of Appeals dismissed Royale's appeal for want of jurisdiction for his failure to comply with the specific notice-of-appeal requirements found in Texas Rule of Appellate Procedure 25.2(b)(3). Royale then sought federal habeas-corpus review, whereupon the respondent asserted that Royale's § 2254 petition was barred by the one-year limitation, claiming, as Respondent does in this case, that the pendency of the direct appeal did not delay the finality of the petitioner's conviction because the state appellate court dismissed that appeal for lack of jurisdiction.

The federal district court rejected this logic: "[i]n order to invoke the provisions of § 2244(d)(1), the issue is not one of jurisdiction, rather when the challenged conviction became final." Then, after determining that finality for purposes of § 2244(d)(1)(A) is the date the state court of appeals issued its mandate, the court afforded Royale credit for the duration of the dismissed-for-want-of-jurisdiction appeal, and concluded that his § 2254 petition was timely. Although the Fifth Circuit has now held that the issuance of mandate is irrelevant to § 2244(d)(1)(A) finality, this Court finds Royale instructive on the notion that a timely appeal, later determined to be defective, nevertheless delays the commencement of the running of limitations because it extends the expiration of the time for seeking direct review, and therefore, the finality of the judgment of conviction.

This Court concludes that because Taff's direct appeal was timely filed and presented to the state appellate court for review, the period of the pendency of the appeal must be counted in determining when, by the expiration of the time for seeking direct review, the judgment became final. Taff's appeal was dismissed in an opinion rendered on November 10, 1999. Under Texas law, although Taff had 30 days to file a petition for discretionary review, he did not do so. Thus, Taff stopped the appeal process, and in such circumstance, his conviction became final "when the time for seeking further review in the state court expire[d]," or on December 10, 1999.

One year from the date on which Taff's judgment of conviction became final was December 10, 2000. If a state prisoner files an application for state post-conviction or other collateral review, the time taken to pursue that remedy is not counted against the one-year limitation. Thus, for each day that a properly filed application for state post-conviction or other collateral review is pending, the limitation period is extended. Taff's state application was pending for 132 days, from August 11, 2000, when he filed the application in state trial court, until December 20, 2000, when the Texas Court of Criminal Appeals denied the application without written order. Extending the one-year limitation period by the total of 132 days allows petitioner Taff until April 22, 2001, to have timely filed a § 2254 petition in compliance with 28 U.S.C. § 2244 (d)(1) and (d)(2). Taff's petition, constructively filed in this Court on March 5, 2001, is timely.

It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, REJECTED.

It is further ORDERED that Respondent is directed to file a supplemental answer to Taff's ineffective-assistance-of-counsel claims 1(d), 1(e), 1(f), and 1(g), within 30 days of the date of this order.