Lead Opinion
Robert Lookingbill appeals the dismissal, as time-barred under the one-year limitations period established by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d), of his petition for a federal writ of habeas corpus.
I.
Lookingbill was convicted of capital murder and sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence on April 6, 1994, and denied rehearing on June 8, 1994. The conviction became final on September 8, 1994, on expiration of the ninety-day period during which he could have applied for writ of certiorari. On November 22, 1996, counsel was appointed to represent him during his state habeas proceedings, and he filed an application for a state writ of habeas corpus on April 21, 1997. On March 4, 1998, the Texas Court of Crimi-na;! Appeals' denied his state habeas petition, and on March 12 he moved for reconsideration of that denial.
,- Lookingbill filed a motion to proceed in forma pauperis (“IFP”) and a motion for appointment of federal habeas counsel on May 19, 1998. The trial court set his execution for March 9, 1999. On December 16, 1998, the Texas Court of Criminal Appeals sent a letter to the presiding judge of the district court indicating that the court had denied the motion for reconsideration without written order. The letter was filed in the district court on December 21,1998.
LookingbiU filed a petition for federal writ of habeas corpus on July 23, 1999. The state moved for summary judgment, averring that the federal petition was time-barred under § 2244(d). LookingbUl asserted that the petition was timely filed and that, even if it was' not, equitable toUing excused him. The district court entered summary judgment, then granted LookingbUl a certificate of appealabiUty (“COA”) on the limitations and toUing issues.
II.
LookingbUl argues that the district court erred in holding that his federal habeas petition was not filed within AED-PA’s one-year limitations period. We review de novo the denial of a federal habeas petition on procedural grounds. Emerson v. Johnson,
The parties stipulated, however, that the AEDPA limitations period began to run on November 22, 1996, when LookingbUl was appointed state habeas counsel,
LookingbUl argues that two additional events should have tolled the running of limitations. The first was his filing of a motion to reconsider the denial of his state habeas petition; the second was his motion for appointment of federal habeas counsel.
A.
LookingbUl claims that the motion to reconsider the denial of his state habeas petition was a “properly filed apphcation for state post-conviction or other coUateral review” that tolled the limitations period from the date he filed the motion to reconsider the denial of state habeas relief to December 22, 1998. This circuit, Uke most, holds that “a properly filed application is one submitted according to the state’s procedural requirements .... ” Villegas v. Johnson,
Rule 79.2(d), Tex.R.App. P., plainly prohibits the filing of motions for rehearing in habeas cases: “A motion for rehearing an order that denies habeas corpus relief under Code of Criminal Procedure, articles 11.07 and 11.071, may not be filed.” Id. Nonetheless, “[t]he Court may on its own initiative reconsider the case.” Id. Relying on that rule, the district court reasoned that this discretion was “insufficient to make Lookingbill’s petition properly filed.” That judgment was correct under Fifth Circuit precedent when the district court wrote the opinion.
After the district court issued its opinion, however, we decided Emerson, which followed the reasoning of Artuz v. Bennett,
After the parties had filed their briefs in the instant matter, we decided Melancon v. Kaylo,
In a supplemental letter brief,
Section 2244(d)(2) tolls the time limit for state applications that are “pending.” 28 U.S..C. § 2244(d)(2). In Emerson,
Lookingbill argues that we should apply Texas’s “mailbox rule” to toll limitations for three days past when the letter was mailed. First, even if we tolled the deadline for three days, Lookingbill’s COA would be untimely. Second, although we are sensitive to state law when determining whether a motion is still “pending,” federal law still determines the time limits under AEDPA.
Federal courts interpret the federal time period as running from the event described rather than from receipt of notice.
Lookingbill does not point to any other provision of state law to argue that his habeas petition is pending. This makes good sense. No other provision of Texas law applies; Texas law bars filing the motion we are considering. Tex.R.App. P. 79.2(d). In Emerson,
Trying, as does the dissent, to graft the generic Texas rules of criminal, civil, and appellate procedure onto a discretionary motion that Texas courts consistently refuse to recognize would be quite challenging.
Where a habeas petitioner fails to brief an argument adequately, we consider it waived.
Circuit precedent requires us to establish a bright-line rule that corresponds to when the Court of Criminal Appeals actually disposed of the motion for reconsideration. Based on the arguments raised in this appeal, we conclude that the court did so in its letter of December 16,1998.
Because the state court denied the motion for reconsideration on that date, the remaining 215 days expired on July 19, 1999. Lookingbill filed his application on July 23, 1999, making it four days late. Thus, he cannot argue, based solely on Emerson, that his federal habeas petition was timely filed.
B.
Lookingbill argues, though, that his motion for appointment of federal habeas counsel tolled limitations from May 19, 1998, the date of the motion, to February 3,1999, when he was appointed federal habeas counsel. He cites numerous cases demonstrating the importance of the right to counsel. He has not, however, cited any case in which a motion for appointment of counsel tolled limitations. “[A] habeas petition is pending only after a petition for a writ of habeas corpus itself is filed.” Williams v. Cain,
III.
Lookingbill argues that equitable tolling should excuse him from AEDPA’s one-year limitations period. We review a denial of equitable tolling only for “abuse of discretion.” Molo v. Johnson,
AEDPA’s limitations period is subject to equitable tolling and is not a
Lookingbill argues that we should grant equitable tolling for four reasons. First, he claims that he was unduly burdened by not having federal habeas counsel appointed until February 3, 1999. Lookingbill, however, did not address this issue in his brief to the district court. That failure constitutes a waiver on appeal.
Second, Lookingbill claims that the lack of federal habeas counsel prevented him from filing a federal habeas petition. As the district court pointed out, however, Lookingbill was quite aware of the limitations period and could have filed a pro se skeletal petition during the pen-dency of his motion for appointment of federal habeas counsel. He did not. Consequently, he cannot succeed on this claim.
Third, Lookingbill claims that we should apply equitable tolling because his federal habeas counsel was overburdened by a busy docket. He argues that failure to provide equitable tolling would violate the Fifth, Sixth, Eighth, and Fourteenth Amendments. Lookingbill has cited no Fifth Circuit precedent to support this claim. Additionally, as the district court pointed out, “operating under time constraints on federal cases [is] not unusual.” Thus, we decline to apply equitable tolling just because a lawyer is busy. Looking-bill’s federal habeas counsel had sufficient time to file a federal habeas petition within the limits established by § 2244(d) but did not do so. Consequently, this claim fails.
Most recently, in his letter brief, Lookingbill argues that we should equitably toll the statute because he missed the deadline by only four days. In past cases, we have focused on the reasons for missing the deadline rather than on the magnitude of the tardiness.
Overall, Lookingbill’s arguments for equitable tolling constitute “garden variety claim[s] of excusable neglect.” Rashidi,
All pending motions are denied.
AFFIRMED.
Notes
. Section 2244(d)(1) provides: "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....” Section 2244(d)(2) provides an exception: “The time during which a properly filed application for State post-convic.lion or other collateral review with respect to the pertinent judgment or claims is pending shall not be counted toward any period of limitation under this subsection.” See Duncan v. Walker,
. Although Lookingbill claims he filed the motion to reconsider on March 12, 1998, the motion was notarized on March 16, which therefore is the earliest date on which the motion could have been filed.
. In Pyles v. Morales, No. 396-CV-2838-D,
. Ex parte Lemke,
. We asked the parties to submit letter briefs addressing the impact of Melancon.
.Lookingbill does not argue that he failed to receive actual notice of the Court of Criminal Appeals' decision until after the filing in state district court. The Court of Criminal Appeals’ letter ruling listed LookingbilTs counsel as one of the parties to whom a copy was circulated.
. Lookingbill’s case provides an excellent example. After filing his motion for reconsideration with the Texas Court of Criminal Appeals, he had no other possible state remedy. Rather than waiting for the court to rule on a technically forbidden motion, which the court had no obligation to consider within a particular time frame, Lookingbill filed his federal habeas petition. No one can seriously contend that that the reason for the untimely filing was that he was waiting for the Court of Criminal Appeals to rule on the motion for reconsideration.
. Artuz,
. E.g., Halicki v. La. Casino Cruises, Inc.,
. Beyond forbidding the motion for reconsideration, Texas state laws and rules simply fail to regulate it. Analogous state law sources as varied as those regulating review by the Court of Criminal Appeals, Tex.Code of Crim. P. art. 11.017; the issuance of the mandate, Tex.R.App. P. 18.1; the filing of the mandate; Tex.R.App. P. 18.6; post-conviction ap
. Lockett v. Anderson,
. See, e.g., 28 U.S.C. § 2254(a); see also Moseley v. French,
. Even assuming, arguendo, that Lookingbill did not waive this argument, it fails, because the Texas Code of Criminal Procedure does not require the state in any way to assist petitioners in filing their federal habeas petitions. See TEX. CODE CRIM. PROC. ANN. art. 11.071 § 2(e) (Vernon 2000). Lookingbill cites no provision mandating that the state appoint him counsel for his federal habeas action. Consequently, this claim lacks merit. See Blackledge v. Allison,
. See Fisher,
.Fisher,
. Ott,
Dissenting Opinion
dissenting:
I respectfully dissent.
Section 2244(d)(2) of Title 28 U.S.C. (1994 ed., Supp. IV) provides that “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.” A one year period of limitation applies to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). This case presents three questions: (1) whether federal courts are required to apply state law in determining whether an application for state postconviction relief “is pending” within the meaning of this provision; (2) if so, whether under Texas law the petitioner’s application for State post-conviction review was “pending” at least until written notice was filed in the state district court on December 21,1998 announcing the final denial of petitioner’s motion for rehearing by that appellate court;
The majority erroneously denies Look-ingbill relief, however, because it (1) mistakenly assumes that it is not required to apply the meaning of state law; (2) exceeds its jurisdiction by deciding this case according to federal common law rules of its own unauthorized creation; and, in the alternative, (3) fails to recognize that the statute of limitations was equitably tolled.
1.
Federal courts are required to apply governing state procedural law in determining whether an application for state post-conviction relief “is properly filed” or “is pending” within the meaning of § 2244(d)(2). In construing that provision, the Supreme Court, in Artuz v. Bennett,
Despite the controlling precedents of the Supreme Court and this court, the majority claims that “[c]ircuit precedent requires us to establish a bright-line [federal common law] rule that corresponds to when the [Texas] Court of Criminal Appeals actually disposed of the motion for reconsideration” rather than risk “mangling state law beyond recognition.” Without further explanation, the majority then concludes that, under its “bright line” rule, the state motion for reconsideration was “actually disposed of’ on the date inscribed on the state appellate clerk’s letter and that Lookingbill’s application therefore stopped pending in state court on that date. Because this court lacks the authority or jurisdiction to supersede the state law meaning of “pending” under § 2244(d)(2) with its own ad hoc federal common law rule, and because I believe that a conscientious reading and application of the state law leads to a different result, I must respectfully disagree.
The majority asserts that Lookingbill did not raise any of the following state law arguments for tolling and, therefore, these arguments are waived. This is incorrect. In response to this court’s question whether Texas Courts would decide that a petitioner’s application does not cease to pend until the court of Criminal Appeals’ order denying the motion for reconsideration is filed in the trial court, Lookingbill’s counsel stated, “Texas Courts have held that a criminal case is pending' on direct appeal until the appeal-has been decided and the state trial court receives and files the mandate of the Court of Criminal Appeals.” As to other questions' raised by the panel concerning the term “pending,” Looking-bill joined with the Attorney General in requesting that questions of Texas procedural law be directed to the Texas Court of Criminal Appeals in the form of certified questions, a request which the majority denied as “unnecessary.”
2.
Applying the meaning of the governing Texas procedural law, Lookmgbill’s application for state post-conviction review was “pending” at least until written notice was filed in the state district court on December 21, 1998 announcing the final denial of petitioner’s motion for rehearing by that appellate court. As the majority has recognized, if the limitations period was tolled this long, “Lookingbill’s COA would be timely.”
a.
The Texas Court of Criminal Appeals is required to expeditiously review all applications for a writ of habeas corpus, and, after reviewing the record, enter its judgment remanding the applicant to custody, or ordering the applicant’s release, as the law and facts may justify.
b.
Texas Rules of Appellate Procedure, Rule 19.1 provides that a “court of appeals’ plenary power over its judgment expires ... 80 days after the court overrules all timely filed motions for rehearing and motions to extend time to file a motion.” Rule 19.2 further provides that “[i]n a civil case, the court of appeals retains plenary power to vacate or modify its judgment during the periods prescribed in 19.1 even if a party has filed a petition for review in the Supreme Court.” Thus, it is evident that under Texas law the Court of Criminal Appeals retained plenary power and jurisdiction of Lookingbill’s application for 80 days after it overruled his timely motion for rehearing. If that motion was overruled on December 16, 1998, as the majority concludes, Lookingbill’s application remained pending within the jurisdiction and plenary power of the Court of Criminal Appeals until January 15, 1999. Consequently, the statute was tolled a sufficient amount of time to make Looking-bill’s federal application herein timely.
c.
The clerk of the appellate court that renders a judgment must issue a mandate in accordance with the judgment and send it to the clerk of the court to which it is directed when the applicable period expires.
In the present case, the record does not contain a judgment either remanding the petitioner to "custody or ordering his release, as required by Texas Code of Criminal Procedure Art. 11.071, or a mandate in accordance with such a judgment that was sent to the clerk of the district court, as required by Texas Rule of Appellate Procedure, Rule 18.1. The letter from the Clerk of the Criminal Court of Appeals to the presiding judge of the state district court bearing the date of December 16, 1998 merely stated: “This is to advise that the Court has denied without written order motion for reconsideration on the court’s own motion.” Thus, that letter does not purport to be a mandate in accordance with the Court of Criminal Appeal’s judgment on the merits as required by Rule 18.1. In the absence of a mandate, jurisdiction over a cause remains in the appellate court, and an attempt to proceed below, prior to the return of a mandate, is a clear invasion of an appellate court’s jurisdiction and can be restrained by a writ of prohibition.
Consequently, jurisdiction of Looking-bill’s petition remained pending in the Court of Criminal Appeals for at least a sufficient amount of time to make his federal application timely. Even if by a large stretch of imagination the appellate clerk of court’s letter to the presiding judge of the district court could be considered to be a mandate of a judgment, it is undisputed that it was not filed in the district court until December 21, 1998 and could not have divested the court of appeals of jurisdiction or reinvested the district court with the same until that date. Even under this conceit, Lookingbill’s federal petition was timely.
3.
“The doctrine of equitable tolling preserves a plaintiffs claims when strict application of the statute of limitations would be inequitable.”
Although the general rule is that equitable tolling should only be applied in “rare and exceptional circumstances,”
Because the consequences are so grave and the applicable law is so confounding and unsettled, we must allow less than“extraordinary” circumstances to trigger equitable tolling of the AEDPA’s statute of limitations when a petitioner has been diligent in asserting his or her claims and rigid application of the statute would be unfair. 13
Lookingbill’s arguments for equitable tolling are more than “garden variety elaim[s] of excusable neglect”
Finally, the majority’s conclusion that Lookingbill could have filed a skeletal federal habeas corpus petition pro se imposes an unfair and unrealistic burden upon an unsophisticated prisoner represented by a dilatory court-appointed attorney. Habeas corpus petitions must meet heightened pleading requirements and comply with the Supreme Court’s doctrines of procedural default and waiver.
For the foregoing reasons, we should grant equitable tolling.
. "If we tolled the deadline until December 22, 1998, Lookingbill’s COA would be time-]y.” Maj. Op. p. 261.
. Id. at 8,
. Williams v. Cain,
.I would have certified the questions to the state court.
.
. Maj. Op. p. at 261.
. Tex.Code Crim. Proc. Art. 11.071(11).
. Tex.R.App. Proc. 18.1.
. Tex.R.App. Proc. 18.1(b).
. See 6 Tex. Jur.3d Appellate Review § 815 Cciting Dixie Gas and Fuel Co. v. Jacobs,
. Davis v. Johnson,
. Id. at 807.
.
. Maj. Op. p. at 265 (citing Rashidi v. Am. President Lines,
. Tex. C.Crim. Proc. art. 11.071; 21 U.S.C. § 848(q).
. McFarland v. Scott,
. Id.
. Id.
. Davis v. Johnson,
. Fisher v. Johnson,