Feliz Talaz Villegas v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division

eating guilty knowledge. United States v.

Williams-Hendricks,

(5th Cir.1986). ease, In this as we have

seen, guilty knowledge sufficient indicia of significance

exist to lend to Garcia’s ner-

vousness. Viewed in context with the im-

plausibility story, jury of Garcia’s could guilty

have inferred Garcia’s knowledge questioning.

from his nervousness under sum, the inference of Garcia’s

guilty knowledge supported his

possession truck combination implausibility story

with the of his

his questioning. nervousness under

jury’s verdict as to knowledge Garcia’s supported by

was therefore sufficient ev-

idence. We AFFIRM. VILLEGAS,

Feliz Talaz Petitioner-

Appellant,

Gary JOHNSON, Director, L. Texas De Justice,

partment of Criminal Institu Division, Respondent-Appellee.

tional

No. 98-10298. Appeals,

United States Court Fifth Circuit. Huntsville, TX, Villegas, Feliz Talaz pro Aug. se. Rehearing and En Rehearing Banc Tommy Skaggs, Attorney Lee Assistant Sept. Denied 1999.* TX, General, Austin, Respondent-Ap-

pellee. GARZA,

Before M. EMILIO DENNIS, BENAVIDES and Circuit * Judges. BENAVIDES, Judge: Circuit prisoner Texas state Feliz Talaz appeals the dismissal of for a his corpus. writ of habeas The district court * grant panel Emilio M. Garza would rehear- for the reasons stated in his dissent. court on or about Octo- district in federal petition file his did not Villegas that found of this 7, support In by ber 1997. limitation established period within he received ineffec- Death claimed that Villegas Effective and Antiterrorism 104-132, 1996, and that the trial No. of counsel Pub.L. tive assistance Penalty Act of (“AEDPA”). a We his motion for denying in court erred 110 Stat. was newly of limitations evi- that the statute on discovered new trial based conclude petition state habeas his Villegas’s Villegas second filed tolled while Because dence. AEDPA, we exclude Because its pending. was date of petition after the effective calculus, we find from the period time claims. See Lindh v. govern that provisions his timely. 2059, petition 320, federal Villegas’s that 117 S.Ct. Murphy, 521 U.S. and re- judgment (1997). vacate the therefore L.Ed.2d 481 proceedings. further for mand to dismiss respondent moved barred that it was ground petition in 28 set forth the statute of limitations 21, 1991, jury a convicted March On 2244(d)(1), by AED- § as amended U.S.C. aggravated sexual of one count of Villegas motion, relying Villegas opposed PA. a indecency with counts of and two assault provision, 28 U.S.C. tolling on AEDPA’s him to a The trial court sentenced child. 2244(d)(2). pen- argued He thirty-five years for imprisonment term had petition dency of his second impris- a term of former count and and that his period tolled the of the years for each for fifteen onment timely. The petition was therefore 21, 1992, the September counts. On latter whom matter was judge to magistrate Villegas’s con- Appeals affirmed Court of referred recommended a for Villegas did not file viction. as prejudice time-barred. dismissed the Texas Court discretionary review with recommendation, mag- making In this Appeals. of Criminal judge Villegas’s found that succes- istrate cor- habeas Villegas filed his first state “prop- had not been sive state This January 1995. on pus petition is used in as term erly filed” a of insufficient included claim consequence, a its and as of ex- evidence, on the use a claim based pe- the limitation had not tolled pendency offenses, to the in- challenge a traneous objection a Villegas filed written riod. of- charging non-property three dictment’s magistrate judge’s recommendation. transaction, arising out of same fenses subsequently adopted The district court trial court erred argument and an magistrate judge’s report recom- a new trial Villegas’s for denying motion Villegas’s peti- mendation and dismissed evidence. This newly discovered based timely Villegas filed a prejudice. tion order denied without written petition was the district court appeal, notice of Villegas filed a second on June appealability granted a certificate corpus petition on March habeas question our consideration raised in the second grounds corpus peti- Villegas’s second state Villegas were that was denied purposes of “properly filed” for tion was records of his trial court complete copy U.S.C. ineffective assistance and that he received 4 of In accordance with section of counsel. II 11.07 of the Code Criminal Texas article Procedure, was dismissed enactment, prisoner Before April the writ on or an abuse of no time constraints faced strict year after was filed. over one corpus. See for a writ of habeas 806, 809 n. 4 Davis v.

Pursuant U.S.C. (5th Cir.1998). AEDPA amended a writ of habeas one-year § 2244 to limi- Villegas’s establish merit of requires claim that we tation ascertain the meaning filed” cases, federal court. 2244(d)(2), most the limita- as that term appears runs only properly from “the date on which applications will trigger judgment became final the conclu- the Act’s tolling provision. Specifically, we sion of direct review or expiration of must determine whether a successive state for seeking time such review.” 28 fit within scope 2244(d)(1)(A). 2244(d)(2). § § In United States (5th Flores, Cir.1998), v. 135 F.3d 1000 Villegas argues that his second state one-year we held that this limita- corpus petition was filed in accor- period applied cannot be retroactively dance with Texas’s filing re- to extinguish claims that technically were quirements and that the dismissal of that prior time-barred to AEDPA’s enactment. petition as successive bearing has no on Flores established that a such as properly it was filed. The re- Villegas, whose conviction became final spondent argues that Villegas’s second prior enactment, to AEDPA’s is afforded properly was not filed be- year following one AEDPA’s effective cause was dismissed as successive. The date, 24, 1996, April to file an application respondent asserts that allowing tolling for a writ of corpus.1 id. at See based on the second would under- 1006; Johnson, Flanagan v. 154 F.3d cf. purpose mine the of the limitation (5th Cir.1998) 196 AED- (clarifying that by allowing prisoner to file endless state PA’s enactment date is excluded from the petitions while preserving ability his to file computation one-year period appli- stale, but technically timely, federal peti- petitions cable to that would otherwise be tions. 24, 1996, time-barred April as of such that The majority of courts that have petitions 24, 1997, April filed on or before considered this issue have concluded that timely). are “ properly ‘a application’ filed is one sub submitted his after according mitted April but asserts that his filing requirements, such governing rules did not fall outside the notice place and the time and of filing.” Villegas relies on tolling provi- (3d v. Vaughn, Lovasz 134 F.3d 148 sion, 2244(d)(2), § codified at 28 U.S.C. Cir.1998); accord, Harkins, e.g., Souch v. which states: (D.Ariz.1998); 21 F.Supp.2d 1083 Galindo The time during properly which a filed (W.D.Tex. Johnson, v. F.Supp.2d 19 697 State or 1998); Johnson, Ellis v. 11 F.Supp.2d 695 other collateral respect review with (N.D.Tex.1998); Irvin, Hughes v. pertinent judgment pend- or claim is (E.D.N.Y.1997). F.Supp. 775 A handful of ing shall not any be counted toward district courts have found instead that a period of limitation under this subsec- properly is one that tion. frivolous, but these courts have offered Johnson, In Fields v. analysis support F.3d 914 little their conclusion Cir.1998), we held that petitioners whose that the phrase “properly filed” connotes convictions became final before AEDPA’s some measure of merit. Washington See may rely enactment tolling on this mecha- Gramley, v. No. 97 C 1998 WL (N.D.Ill. during 10, 1998); nism pendency of a Apr. Hill v. Keane, § covered Assessing (E.D.N.Y.1997); F.Supp. 1. Flores dealt § with the limitation set tions filed under both 2255 and forth in 28 U.S.C. but relied on cases Flanagan v. 200 n. interpreting provision the similar of 28 U.S.C. (5th Cir.1998). holding applies 2254. The in Flores a state only that Senkowski, ly requires F.Supp. 239 Valentine Congress intended major- Had filed. (S.D.N.Y.1997). properly agree with We finding and, a state principles tolling on based condition ity line of eases re- merit, concerns drafted it could have statutory construction exhaustion, hold scope. we from its comity petitions garding frivolous exclude application” pro have crafted too could So that conforms is one purposes tolling from clearly withheld vision applicable with a state’s in state court Ville- hold that further requirements.2 containing procedur dismissed although second gas’s enacted ally barred claims. thus successive, filed and ha- backdrop against a AEDPA applicable tolled barred procedurally dealing beas law See, Thompson, histo- v. legislative e.g., its Coleman nor claims.

Neither AEDPA 2546, 115 filings qualify 722, 750, 111 state S.Ct. ry which explains 501 U.S. S.Rep. (1991) See applications. federal habeas (barring filed properly 640 L.Ed.2d (1995), 1996 reprinted in 104-179 No. defaulted of claims review 924; No. Rep. H.R. Conf. adequate U.S.C.C.A.N. independent and an pursuant to (1996), 1996 reprinted 104-518 petitioner rule unless Circuit, Like Third 944. U.S.C.C.A.N. prejudice or cause and demonstrate can re- engraft a merit are reluctant we justice); miscarriage of fundamental cf. 2244(d)(2) § without into quirement 1083, Harkins, 21 F.Supp.2d v. Souch to do so. congressional intent indication of (D.Ariz.1998) (observing that an 1087-88 (“After all, Lovasz, at 149 134 See ha- body governs law extensive ‘a phrase chose the Congress barred raising procedurally beas we do not into application,’ one that, Congress had reasoning and claims any requirement read it landscape, legal sought to alter non-frivolous.”). deal here That we clear). an have such intent would made right to that constrains the awith statute problems Congress also dealt with inclines corpus also of habeas seek writ petitions at the same by successive raised goes interpretation an to resist us 2244(d)(2). § 28 time that it drafted § meaning beyond plain 2244(a)-(b). That § U.S.C. in- sign of a clear Without not to address succes nonetheless chose derogate that tent, ought not this court procedurally barred petitions or sive state inter- by reaching overbroad right 2244(d)(2) us all the § convinces claims in Galindo, F.Supp.2d at pretation. See 19 overly not assume ought that we more Thomas, 517 706-08; v. U.S. Lonchar cf. “properly filed.” meaning broad 1293, L.Ed.2d 116 S.Ct. (“[Gjiven importance of first 2244(d)(2) § reading of close Our particularly it is federal habeas comity and principles of comports with deprive any rule that would important that The Su- regarding exhaustion. concerns writ should be all access to the inmates of stated that “the States Court has preme fair.”). clear both and to ad- opportunity first should have the violations alleged dress and correct that a suc- similarly to find refuse Coleman, rights.” prisoner’s federal containing or one cessive state AEDPA at S.Ct. im- 501 U.S. per se barred claims procedurally attempt part was an explicit- properly filed. governing the time notice and ed to the rules filing requirements, we mean By procedural include, for exam- place filing be satisfied be- prerequisites that must and those petition to be allow a obtain court will ple, fore a state judicial re- level of filing. and accorded some judicial authorization requirements are not limit- filing view. Such “ ‘reduce federal into state crimi- of filings by prisoners see, intrusion such Villegas, ” Lovasz,

nal proceedings,’ 134 F.3d at e.g., id. art. 11.071 4 (establishing the (citation omitted), encourage claim exhaus- time frame for a habeas filing tion, 2254(b)(1), see 28 U.S.C. and accord case), in a death penalty but did not. So greater adjudica- deference to state court too, Texas could have enacted statutory tions, 2254(d)(l)-(2), §§ see 28 U.S.C. scheme precluding filing of a succes- (e)(1); Johnson, Gochicoa v. 118 F.3d sive prior judicial without authori- (5th Cir.1997); Drinkard zation. e.g., Cir.1996). 767-69 Our 2244(b)(3)(A)-(B) (conditioning interpretation of in keeping of a successive federal habeas statutory with these purposes. the authorization of filing by such a three- judge panel of the court of appeals);3 Ind. concerns, respect comity

With we R. Proc. Post-Conviction Remedies agree with the Third Circuit that “if a (directing Indiana state courts to decline petitioners allows to file second or to authorize the of a successive lief, unless the form proposed federal courts should not undermine state’s decision by refusing to toll the demonstrate that relief). one-year petitioner of is of to entitled Nor did where a second or State court accept to Villegas’s refuse pending in the state court sys- successive filing, for as it may do Lovasz, tem.” 134 F.3d at 148. AEDPA in certain circumstances. See Lowe v. evinces no Scott, intent to (5th embroil Cir.1995) federal courts in problematic determina- (recognizing the abuse-of-the-writ doctrine tions of the merit of state court filings. which “allows the after finding court See id. at 149 (finding a merit inquiry to be writ, has to abused refuse to inappropriate and unnecessary); Hughes accept or file the habeas absent a Irvin, v. F.Supp. 778-79 showing of cause that the contention could (E.D.N.Y.1997) (highlighting the difficul- not have been raised in the prior proceed- posed by ties a merit inquiry). substantive Dora, ing”); Ex parte 548 S.W.2d Moreover, we see no reason to second- (Tex.Crim.App.1977) (delineating circum- guess legislatures’ decisions regard- stances which state court may decline to ing disposition applications of state an application file for a writ of habeas post-conviction or other collateral review. corpus); §. 1915(g) (barring cf. time, by civil actions At this whose three or when filed his more previous second state places Texas actions were dismissed as no ab- numerosity proceeding solute time or frivolous and who limitations on are informa the filing applications pauperis); of id. (allowing a writ of 1915A a court habe- after a to review involving prisoner complaints conviction not for frivolous the imposition of the penalty. death claims and immune prior See defendants (West Tex.Crim. P.Code Ann. art. docketing); 11.07 Tex.Crim. P.Code Ann. art. (“The Supp.1999). Texas could placed have 11.07 5 Court of Criminal Appeals greater restraints on the time or number deny relief upon findings and 2244(b)(3) argues The dissent sought discourage a petitions by successive filing relief, pertaining limiting availability instead of petitions. agree. successive fact, We prohibiting From that filing applica- the actual of such leaps the dissent then the further tions. 11.07 article of the Texas any conclusion that pertaining rule Code of filing Criminal allows the Procedure successive must also be a requires judi- of a successive but then filing requirement. leap unsupported This cial consideration of the to ascer- logic. Congress filing require- relied on tain whether it sufficient contains facts to petitions. ment to limit In con- allow successive the court to into the delve merits of the trast, states, Texas, including have petition. individual claims forth in set the successive forgo would without hearing judge conclusions federal premature cause.”)- fact, submit Texas law docketing and federal simultaneously file state would filing of suc- contemplates specifically face would then Federal petitions. Code The Texas applications. cessive abey- holding petitions the dilemma sharply con- Procedure, although Criminal prejudice dismissing without ance or review their courts in Texas straining be time-barred may later tions grant them allows petitions, determi- ensuing state virtue instances, notwithstanding in limited relief Brewer nation. See application. an earlier filing of (not- curiam) Cir.1998) (per 11.07(4) (delin- Ann. art. P.Code Tex.Crim. authority to abate court’s district a court eating the circumstances has not prisoner dismiss grant of or the merits may consider remedies). Sec- Thus, available state exhausted petition).4 a successive based on it, 2244(d)(2), interpreted have as we AEDPA, Texas has like tolling if a allowing pitfalls these avoids regarding successive policy established state’s with the complies prisoner matter is left As petitions. manner, In this requirements. of dural resolution first forum states —the exhaustion, avoids encourages AEDPA unlikely that find claims—we filings, and successive piecemeal tolling provision intended its to deal doctrine leaves established to, or even interfer- indifference result in claims. barred procedurally peti- with with, handling of given ence relief. tions for con respondent’s mindful of the We are allowing tolling for meritless cern that that we Third Circuit agree limita the will undermine of interpretation an embrace should not Al by AEDPA. imposed period “discourage peti- that would fi may forestall interpretation our though in claims exhausting all their tioners from will not it petitions, of some nal resolution court, second by means a even time for degree the an to excessive re- extend for case, tolling will every the law, nearly in filing; under state permissible lief where takes as state court only long the in last habeas review seeking before because pending resolve the 134 F.3d Vaughn, Lovasz v. court.” a state time before any lapse of Cir.1998). contin- (3d Making tolling against will be counted before of success upon some measure gent Flana period. See one-year limitation AED- undermine would the state courts (5th 196, 199 n. 1 gan v. Unable on exhaustion. emphasis PA’s Cir.1998). Thus, not be a will prisoner will find state court predict whether period expired limitation an able to revive within petitions fit that their successive conform filing a relief, many by simply allowing exceptions statutory requirements. ity with basic compliance seeking ensure Furthermore, delay' for potential either limitation with AEDPA’s exceptions are statutory precludes grant mine whether 11.07 4 of article 4. Section Tucker, See, 973 S.W.2d e.g., parte Ex met. petition, unless based on a successive of relief (examining (Tex.Crim.App.1998) facts sufficient petitioner demonstrates of habeas writ application for allowing second exception relief. statutory fit within an ex to establish facts sufficient contained ception on Texas § 4 as a limitation view the basis allowing grant relief on grant successive ability to relief court's Sowell, parte application); Ex bar to the opposed an absolute pétition, as (same). 1997) If (Tex.Crim.App. pursuant S.W.2d 39 petition. Although, filing such within an fit petition does not the successive automati- court will not a Texas state it. This will dismiss exception, the state court in a raised cally the merits claims consider accept a the refusal to from process distinct accept petition, will filing. petition for application to deter- filing and review place decline as states stricter restrictions dance with a filing re- filings that are the tolling. quirements. basis of I disagree, with the meantime, In judicial majority’s Texas’s abuse-of- conclusion that places law Texas the-writ doctrine will serve no limit on impedi the number of successive state repeated filing ment to the habeas petitions. of meritless conclude that Ville- doctrine, petitions. gas’s This second petition is similar not “properly successive-petition provisions, to AEDPA’s filed” purposes 2244(d)(2), for the be- allows the Texas Court of cause Ap Criminal did not file his peals to to accept appli- a successive accordance with refuse Texas’s procedural quirements from a petitioner who abused catipn has of a successive writ, petition. unless the demon strates that claim his could not have been Villegas filed two for state col- in an proceeding. raised earlier e.g., lateral following the conclusion of Scott, Lowe v. Cir. direct review of his The Tex- convictions. 1995). Thus, doc abuse-of-the-writ as Court of Appeals Criminal dismissed his trine peti minimizes the extent to which a second petition as a Successive or Abuse of tioner can extend the federal Petition, the Writ with Arti- accordance end, however, respon cle of the Texas Code of pertain policy dents’ concerns and are Criminal Procedure. See Tex.Code Crim. appropriately more directed to (West P. Ann. art. 11.07 Supp.1999). Ville- legislature. Any and the state delay occa gas the instant by tolling sioned is insufficient to force an federal district court. magistrate interpretation not supported by stat judge found that the second state ute. proper was not a filing, because the Texas court had refused the petition under state

Ill law as abuse of magis- the writ. The judge trate then above, For the concluded that the reasons discussed second we petition was not “properly conclude that filed” according 28 U.S.C. autho- AEDPA, rizes tolling during pendency thus would not toll the tions filed in accordance with the federal ha- a state’s 2244(d)(1). petition. beas procedural § See 28 filing requirements. We hold U.S.C. Subsequently, Villegas’s that district court adopted second state habeas tion, successive, judge’s although magistrate recommendation dismissed as was petition that the properly preju- be dismissed with meaning within the filed of dice on ground that it by was barred With the benefit of toll, sulting timely appealed. limitations. Villegas filed his federal within established 2244(d)(1) Title 28 provides U.S.C. AEDPA. therefore VACATE the a one-year limitations for a state judgment and REMAND pro- for further prisoner to file a writ corpus. of habeas ceedings with opinion. consistent 2244(d)(2) Section tolls the peri- limitations od: during properly “The time which a GARZA, EMILIO M. Judge, Circuit filed State dissenting: or other respect collateral review with I write separately pertinent because I judgment conclude or claim is pending that Villegas’s second state petition shall any period habeas not counted toward of did not toll the I con- limitation under this subsection.” The cur with the majority conclusion of the statute not define the of meaning does 2244(d)(2) opinion filed,” that phrase autho- “properly legislative and the tolling rizes period during history similarly the limitations import. is silent as to its pendency See, Irvin, of accor- e.g., Hughes v. F.Supp. in- should filed” “properly phrase rou er (E.D.N.Y.1997). Federal ir- inquiry merits federally-created re clude a procedural tinely defer to of fil The issue creating federal law. of state respective lieu quirements, a require- whether federal to determine additional requirements, to read whether in state filed” “properly is filed” meaning “properly ments into rel. ex States e.g., United irrelevant, court.1 to the issue is Gilmore, F.Supp.2d Morgan filed” “properly not is whether “proper (N.D.Ill.1998) (stating that a state’s comply with because fails in accor is one filed ly application” Respon- The requirements. procedural require procedural state’s with a dance that we add requesting is not dent ments). required beyond those Rather, Re- law. dispute procedural when Texas parties The Texas under funda- grounded filed” “properly qualifies spondent’s argument comply Villegas argues mentally Villegas’s law. failure it “is filed in Texas when “properly Respondent filed” The procedure. Texas with being the conviction which in the court in Villegas’s second argues Respon- The challenged was obtained.”2 of the as an abuse dismissed which was con- cannot be argues dent 11.07, failed Article Section writ under if the filed” “properly been to have sidered require- Texas’s comply under was dismissed Thus, appeal the issue on ments. Respon- The successive. rules as dural statute abuse-of-the-writ whether Texas’s that the failure essentially, argues, dent filing requirement. is a state 4, means comply with Article majority’s with the disagree I Because Villegas’s state argu- Respondent’s of the characterization filed.” “properly not ment, the relevance disagree not majority opinion does The ma- arguments. Much many of its argument. Respondent’s characterize considers jority’s discussion reluctant that “we are majority states The includes a merits filed” “properly into requirement engraft a merit of a independent ment indication of some without that it majority states requirements. opin- do intent to so.”3 into merits engraft will refuse similarly “[w]e ion states later indication without successive state to find that a After ac- to do so. congressional intent barred containing procedurally or one language plain knowledging improperly filed.” Such per se claims is as to the history are silent legislative statements, no reference make filed,” meaning indicate that filing requirements, law the lan- intent from congressional infers addressing wheth- majority opinion is considering of a un- words, the merits appli- from requires aif state 1. In other (1) cause thirty days, petitioner can show a federal less the either petition in cant to file a (2) requirement, bring previously, in or to that state the claim will defer for failure to that, creating requirement. a federal States lieu of of the United violation but Constitution, juror could have rational no 11.07, Section to Article cites guilty beyond a reason- applicant found of Criminal Procedure. the Texas Code Ann. art. P. able doubt. See Tex Code Crim. 11.07, art. P. Ann. Tex.Code Crim. 11.07, 4(a). provision is not con- first The The claim. merits of the cerned majority indicate that 3. Such statements provision resembles harmless-error latter inquiry as an Section views Article inquiry into involve an analysis, and does petition. The of the into merits reason, it is claim. For this from, the merits of the distinct required by Section is inquiry requires it Section 4 to, incorrect discuss precedent consideration and occurs inquiry the merits. 4(a) into prohibits a court the merits. structure, guage, purposes filing requirements, including those for indication, however, AEDPA. There is no petitions. successive Congress even considered this issue. majority The opinion suggests that the Moreover, to the extent that one can infer structure of the AEDPA evinces congres- congressional language, intent from the sional intent. majority The states “Con- structure, AEDPA, or purposes of the gress enacted AEDPA against a backdrop inference is that federal courts should de- of federal habeas law dealing with proce- procedural fer to state filing requirements. durally barred claims.” The in- majority majority The reasons from the absence timates that considering successive-peti- in language the AEDPA that refers to tion requirements in the tolling either merits or successive- provisions would alter “legal this land- petition requirements. example, For Yet, scape.” “legal landscape” is no majority states in- Congress “[h]ad more altered recognizing states’ suc- tended to condition tolling on a state court cessive-petition requirements than it is by merit, finding it could have drafted recognizing timing requirements. Proce- to exclude petitions frivolous dural default applies to claims that are scope. from its too So could late, yet majority recognizes provision have crafted a that clearly with- that a “properly filed application” is one tolling prisoners held from state that is not filed late. e.g., Coleman petitions court successive petitions con- 722, 749, v. Thompson, 501 U.S. 111 S.Ct. taining Yet, proeedurally barred claims.” 115 L.Ed.2d 640 (“By Congress’s phrase choice of the “a proper- late, Coleman defaulted his entire ly application” any does not have appeal.”). collateral majority The bearing types on which did not look congressional apply. ments If federal intent require .for alter the to have “merit” if law on default before requires, law so then there was no held that a “properly need filed application” a requirement add conforms with a applicable be non-frivolous. theOn other requirements, dural timing includes hand, any some states not include requirements. Therefore, it disingenu- form of “merits” inquiry their state majority ous to cite the law re- procedural filing requirements. peti- For garding procedural default as an indicator states, tions filed these federal courts intent. perform should not inquiry, “merits” be- majority The supports its structural cause these states If Congress would not. interpretation by reference to 28 U.S.C. had provision “crafted a that clearly with- 2244(a)-(b). opinion explains that held tolling from filing succes- Congress dealt with problems raised petitions,” majority sive as the suggests, successive federal at the same then in states that allow time it drafted the tolling provisions tions, provision would be in conflict §in states that law. A specification by Con- Congress’s choice not to address succes- gress include, filed” shall include, sive state shall not means certain that narrowly we should read the quirements phrase would be inconsistent with de- This, “properly choice, filed.” ferring to the It structural states. is doubtful that easily procedural explained. Although wished to add requirements beyond procedural created required by those federal requirements the contrary majori- states. To the to file a successive ty’s opinion, specify- the intent federal it refrained from ascer- phrase tained from the “properly procedural filing filed” state requirements. suggests deferring to all procedural state This structural choice can be read as a or proceedings intruding into state court is procedural state comity toward display to the adequate deference according may may not is not or which filing requirements, requirements. courts. successive-petition state include 2244(b) that a suggests anything, If its inter- that majority explains The in- requirements procedural state’s regard- with concerns comports pretation In requirements. successive-petition clude should that we It states ing exhaustion. Appealabili- a Certificate to obtain order 2244(b)(2) §of adopt interpretation an not 2244(b)(3) appli- (“COA”), requires ty from ex- discourage petitioners that would to for failure either cause cant to show court, “even claims in state hausting actual prior petition in a the claim bring subsequent petition means of second Yet, federal habe- a successive innocence. permissible where post-conviction for if “properly not be filed” would Lovasz, at law.” under state a COA. did not obtain the that, if a state recognizes This statement that a suggests requirement COA its preference its that expressed has requirements” “applicable claims, there then hear not certain should may, filed” “properly limitations federal to toll the is no reason situations, successive-petition include those pursue the petitioners while Thus, I unconvinced am requirements. deter- If a in state court. claims of the AEDPA favors that the structure ac- not that an mines congres- interpretation majority’s the procedural requirements, cording to state sional intent. successive- may not include may or interpre- that its majority explains applica- then that requirements, principle the comi- comports with tation period. limitations the not toll tion should majority is the extent that ty. To the emphasis the AEDPA has Although re- a federal substantive declining to add asserts, it also exhaustion, majority the filed,” agree. I “properly quirement the limitations courts to toll federal directs majority However, the extent “prop- are that only applications proce- state certain recognize refuses court. state erly filed” the find requirements, dural exhaustion discussing In of com- principle opinion antithetical including that ment, majority reasons above, comity is a explained ity. As filed” merits concern, should look federal courts then ma- results. The problematic incur would as- filing requirements file prisoners will jority’s concern properly. is filed certain whether court, in federal claims unexhausted file not allow If a state does courts will abate district federal fed- petitions, then the frivolous successive preju- them without petitions or dismiss undermine the courts should not eral that a determines If the state court dice. by tolling the state’s decision meet the state’s does not it is limitations Given this determination requirement, dural successive-petition that created then period, limitations outside occurs be said that it cannot requirements, is barred frivolous prisoner’s those recognizes state- court that federal is not This result from federal review. is, according to created only because problematic, the state legisla- majority, second-guessing bar are period will disposition regarding ture’s decision the state’s in violation of that are those applications event, the re- any rules. be said that lief.4 It cannot to "sec- no case, majority professes to see reason passed legislature the Texas In this decisions,” and legislatures’ ond-guess courts can the Texas slate statute that are disregards yet Texas statute. consider successive perplexing writ. It an abuse is no than problematic suits are more those was unavailable on the date the appli- timing require- some state previous associated cant application; filed the or recognized by ments federal courts. See (2) by a evidence, preponderance of the Cain, 97-2430, A. Triggs v. No. CIV. but for a violation of the United States (E.D.La. 127249, *2, 8, 1999) WL at Mar. Constitution, no juror rational could (finding application “prop- not have found the applicant guilty beyond a erly petitioner filed” where the failed to reasonable doubt. prove a exception statute-of-limitations art. 11.07. We Tex.Code P. ANN. Crim. applies petitioner where the receives interpret should the Texas statute as a information). Further, new aif state law Texas court would interpret it. See Unit- petitions, bars certain successive then we Cobb, ed States v. should not allow a to forestall Cir.1992). primary “The rule in statutory period by repeated- interpretation is that a court must to look Thus, ly filing such I petitions.5 disagree legislature.” intent of the Union majority’s exhaustion concerns. Shelton, Bankers Ins. Co. v. 889 S.W.2d turn to whether Texas’s abuse-of-the- (Tex.1994). When determining writ statute procedural filing legislative intent, may look to the requirement. Article 11.07 the Texas language of the legislative statute and the Code of Criminal provides Procedure history. See id. “Procedure after conviction without death Turning to the language, statute’s Sec- penalty”: tion 1 that Article 11.07 states establishes § 1. This article establishes the procedures application for an for a writ for an application dures for writ of habe- corpus. habeas Section confirms that corpus which the applicant seeks Section 4 requirement. is a felony judgment relief from a imposing a Section, 4, Under if a successive habeas penalty other than death. filed, application may not consid- er the application merits absent one (a) § 4. If a subsequent of the statutory exceptions, i.e. cause or writ is filed after final actual inquiry innocence. The into wheth- disposition of an initial chal- er the petition statutory meets one of the conviction, lenging the same a court exceptions precedent inquiry occurs to an consider the grant merits of or The majority opinion merits. states on the based un- places Texas law no absolute time or the application less contains sufficient numerosity limitation on the of appli- specific establishing facts that: 11.07, cations. places Article limit, however, the current claims and issues have on the number of succes- pre- not been and could not have applications prisoners been sive habeas are — previously in an original applica- sented limited to application except one habeas previously or considered limited appli- Although circumstances.6 a suc- filed, cation filed under this application may article because cessive be factual legal basis for the claim “properly” should not considered majority respondents' proper states that "the Texas's rules fil- pertain policy ap- concerns and are more comparable of successive are propriately directed to and the obtaining concerns, legislature.” however, Respondent’s 2244(b) (requiring ap- COA. See U.S.C. have been addressed the Texas plicant failing bring cause for show legislature in Article 4. It Article innocence). prior claim in a incongruent encourage Respondent request change from legislature recognize and then to refuse legislature's response requests. to such 478 a notation then makes convicting court procedural it on the rejects

a state court a file assigns and has issued writ 4.7 in Section grounds listed id. to the case. See number 4 is that Section argues The by filing procedural not a number timing and limits the 5 Section in the Texas it to other sections comparing by provided As applications. of habeas majori- The Procedure. of Code Criminal the 6, not issue unless a writ will Section 11.07, provides which Article ty compares of Section requirements the meets conviction without after the “Procedure is a Article Thus, 5 of 11.071 Section 11.071, which to Article penalty,” death have filing requirement. We procedural penalty in death “Procedure the provides 5(a) procedural as a interpreted Section majority makes Specifically, the cases.” subse filing of “prohibits rule that 4, 11.071, Section Article comparison ab untimely applications, or quent procedures for provides which Emery v. innocence.” or actual sent cause proper com- The applications.8 (5th Cir.1997), 191, Johnson, 139 F.3d 11.071, Article not to parison, — 418, U.S. —, denied, 119 S.Ct. cert. 11.07, Article counterpart of 4. The Section (1998); see also Fuller 142 L.Ed.2d 5, 11.071, 4, Article Section Section (5th Cir.1998) for “Subse- procedures specifies which 11.071, Section Article (stating that Article Untimely Applications.” quent considering from a state court “precludes that, 5(a), if an 11.071, provides Section in presented a succes of claims the merits untimely subsequent or is predicate unless sive habeas may not consider a court then application, are estab statutory exception facts for unless the merits — denied, U.S. lished”), cert. petition for (1) cause failure establishes applicant L.Ed.2d 1012 —, 119 S.Ct. timely initial claim present (1999). sug comparison The Section (3) innocence, actual "petition, 11.07, is also a Article Section gests that differently have jurors would answered filing requirement. sentencing issues. See special Tex. history of Texas’s abuse- legislative 5(a). 11.071, § P. art. Ann. CRIM. Code interpre- supports statute of-the-writ 4 of clearly parallels Section This Section n Montford, the author tation. “Senator Article comparison-to Article 11.07. 4(a) 11.07, to Article that added the bill consideration by 11.071 benefits provi- floor that the stated Senate of Article 11.071. Section Section 6 of the writ doctrine ‘adopts the abuse sion that, court receives convicting if the states practice currently used meets the notice that one time application an inmate to a limits 5, then a writ of habeas ments Section except, and of habeas P. for writ See Tex.Code corpus shall issue. Crim. except, exceptional emphasize want 11.071, § 6. The clerk of Ann. art. addition Texas’s I believe considering because similar 7. Some courts filing peti- contrary place for provisions conclu rules on the time and have come Lovasz, tions, at 148-49 af- e.g., sion. law Texas's Pennsylvania law allows (explaining "properly application is fects whether subsequent petitions and sometimes filing of filed.” proceedings, and thus grants in such granting regarding subse state rule 4(a), place gives 8. Article peti quent petitions does not affect requirements for lime Harkins, filed”); Souch v. tion is F.Supp.2d 4(b) appli- states that application. Section (con 1083, 1086-87 (D.Ariz.1998) presumed filing date is after cation filed,” "properly petition is cluding that a applicant can establish untimely, unless irrespective rule on of Arizona's justify- showing particularized good cause default, petition complies with basic if the circumstances. Ann. P. Tex.Code Crim. regarding place time 11.071, 4(a)-(b). art. unpersuaded these cases filing). I am Torres, parte circumstances.’” Ex 469, (en (Tex.Crim.App.1997)

S.W.2d America, UNITED STATES of banc) 440, (quoting April S.B. Plaintiff-Appellee, 2). 1, Tape suggests Side This statement 4, enacting legislature Section intended to limit the number of successive Dwayne ANDERSON, David aka David petitions.9 legislature The Texas Anderson, Defendant-Appellant. has established limiting rules No. 98-50997.

the number of applica- successive habeas tions. Based on the legislative history, we United States Court of Appeals, should consider Section to be a Fifth Circuit. ment “properly be filed.” 10, Aug. Looking to the language statute legislative history, and the I conclude that

Texas courts would consider Article of the Texas Code of Criminal

Procedure to re

quirement peti Davis, parte

tions. See Ex 947 S.W.2d (Ct. (en banc) App.1996) Crim.

(“Articles 11.07 and both 11.071 include

similar restrictions on the of subse

quent applications for writ of habeas cor

pus with becoming both statutes effective

September provi 1995. Both contain subsequent appli

sions merits of a may

cation not be considered unless the

application contains sufficient facts estab

lishing that certain conditions have been

met.”). Thus, compliance with Section 4 is

required for an application “properly to be

filed” under the Considering AEDPA. all

of a state’s filing requirements,

including those that contain succes

sive-petition requirements, approach is an comports comity congres

sional intent. Villegas’s state peti

tion, which was under Section dismissed filed,”

should not be considered

and thus should not toll the AEDPA’s Therefore, I would af

firm the district court. solely capital applied capital non-capital

9. The floor discussion related sion both cases, however, Torres, parte Senator Montford had ex- cases. See Ex S.W.2d at plained provi- earlier that the writ n. 6.

Case Details

Case Name: Feliz Talaz Villegas v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 14, 1999

Citation: 184 F.3d 467

Docket Number: 98-10298

Court Abbreviation: 5th Cir.