Lead Opinion
Kevin A. Melancon, Louisiana prisoner # 98471, appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition as
I
In October 1992, a Louisiana jury convicted Melancon of possession of cocaine. The trial court sentenced him to twenty years’ imprisonment because he was a four-time multiple offender. Melancon’s conviction and sentence were affirmed on direct appeal. On March 11, 1994, the Louisiana Supreme Court denied Melan-con’s application for a supervisory writ.
On November 6, 1996,
On May 8, 1998, approximately five months after his application for a supervisory writ was rendered untimely under Louisiana Court of Appeals Rule 4-3, Me-lancon filed an application for a supervisory writ with the Court of Appeal. The Court of Appeal granted the writ on August 13, 1998, but denied relief. The Court of Appeal suggested that Melancon’s application was untimely, but noted that the trial court set the return date as May 8, 1998. The opinion considered the merits of the claim “because this Court ordered the evidentiary healing in response to defendant relator’s pro se writ.”
On August 27, 1998, Melancon filed a timely application for rehearing from the Court of Appeal’s determination, which was denied on September 30, 1998. He then filed an application for a supervisory writ with the Louisiana Supreme Court on October 30, 1998. The Louisiana Supreme Court denied the writ without explanation on February 5,1999.
Melancon filed this pro se federal habe-as petition on June 14, 1999, arguing again that he was denied the effective assistance of counsel. The magistrate judge issued a report, recommending dismissal of Melan-con’s § 2254 petition as time-barred. The magistrate judge determined that both Melancon’s May 8, 1998 application for a supervisory writ to the Louisiana Court of Appeal and his October 30, 1998 application for a supervisory writ to the Louisiana Supreme Court were untimely, and therefore that the tolling provisions in § 2244(d)(2) did not apply to these applications. The district court, reviewing the magistrate judge’s recommendations, the petitioner’s objections, and the record, found that the one year statute of limitations was only tolled until December 9, 1997, because the May 8, 1998 application
This court granted Melancon a COA as to whether Melancon’s May 8, 1998, application for a supervisory writ was properly filed with the Court of Appeals and whether Melancon’s state post-conviction application was pending until February 5, 1999.
II
We review de novo the district court’s denial of Melancon’s habeas application on procedural grounds. See Emerson v. Johnson, 243 F.3d 931, 932 (5th Cir.2001). The Antiterrorist and Effective Death Penalty Act (“AEDPA”) established a one year statute of limitations on the filing of federal habeas applications. 28 U.S.C. § 2244(d)(1). Under § 2244(d)(2), “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.”
Melancon, whose conviction became final prior to the enactment of the AEDPA, was entitled to a one year grace period from the date of AEDPA’s enactment—-April 24, 1996—to file his § 2254 petition. See Hall v. Cain,
After the trial court denied relief, Me-lancon had thirty days to request review of the trial court’s determination, according to Louisiana Court of Appeal Rule 4-3.
This pattern of events leads to two issues, both of which must be resolved in
Louisiana Court of Appeal Rule 4-3 allows the Court of Appeal to consider an application that was not timely filed if there is a “showing that the delay in filing was not due to the applicant’s fault.” Because Rule 4-3 entitled the Court of Appeal to consider Melancon’s application for a supervisory writ on the merits, and the Court of Appeal did consider Melancon’s application on the merits, the May 8, 1998 application was “properly filed” in state court.
The main issue on appeal, then, is the question of when the state habeas application was considered to be “pending” under § 2244(d)(2). The district court only tolled the limitations period for periods of time in which an application was actually before the Louisiana court; it allowed the limitations period to run during the time between the date of one state court’s decisions and the petitioner’s filing of a further appeal. However, if Melancon’s applica
As a starting point for our analysis, we must consider whether the time period for a federal habeas application is tolled during the intervals between the state court’s denial of post-conviction relief and the timely appeal from that denial. This determination affects the total number of days tolled between the Court of Appeal’s denial of the writ and the Supreme Court’s denial of the application for a supervisory writ. Every circuit that has addressed the issue has found that a state application is “pending” during the intervals between the state court’s disposition of a state ha-beas petition and the petitioner’s timely filing of a petition for review at the next level. See Bennett v. Artuz,
Although Melancon’s May 8, 1998, application was properly filed, and his state applications were pending until February 5, 1998, Melancon’s § 2254 application is not necessarily timely. Melancon also requires tolling of the six months that passed between the trial court’s disposition of the case and Melancon’s May 8, 1998 application to the Court of Appeal. That time period includes five months after Melancon was no longer entitled to an appeal under Rule 4-3.
Although we have not addressed what effect the finding that an untimely application was “properly filed” would have on determining whether the application was “pending” during the period prior to filing, the Seventh and the Tenth Circuits have both found that an application ceases to be “pending” after the statutory period to appeal expired and that tolling can begin again when an application is properly filed. See Fernandez v. Sternes,
We recently held that a petitioner’s “application seeking post-conviction relief in the Louisiana trial court ceased to be ‘pending’ within the meaning of section 2244(d)(2) when he failed timely to file an application for a supervisory writ with the Louisiana Supreme Court.” Williams,
Applying this reasoning, Melancon no longer had an application “pending” in state court when he failed to file an application for a supervisory writ with the Court of Appeal and failed to obtain an extension. The “properly filed” May 8, 1998 application to the Court of Appeal did not alter that fact; determining that the application was “properly filed” simply tolled all subsequent proceedings relating to that application. Melancon’s federal ha-beas petition was therefore not tolled until May 8, 1998, because his application for a supervisory writ with the Court of Appeal was approximately five months later than provided for in Rule 4-3. Because the time in which the limitations period was running exceeded 365 days, Melancon’s federal habeas claim is time-barred.
Ill
Melancon argues that his application for a supervisory writ to the Court of Appeals was not timely because the Louisiana trial court incorrectly set the return date on the application. Generally, “when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding, we will examine the facts to determine whether the prisoner is entitled to equitable tolling under § 2244(d)(1).” Coleman v. Johnson,
The one year limitations period in § 2244(d)(1) is not a jurisdictional bar and
Nonetheless, Melancon is not entitled to equitable tolling. Equitable tolling should only be applied if the applicant diligently pursues § 2254 relief. Scott v. Johnson,
IV
For the foregoing reasons, we AFFIRM the district court’s dismissal of Melancon’s § 2254 application as time-barred.
AFFIRMED.
Notes
. Although the Louisiana Court of Appeal noted that Melancon asserted that he filed his application on October 9, 1996, the magistrate judge found that Melancon did not file his application for post conviction relief until November 6, 1996. This disparity does not alter the outcome of the case.
. Rule 4-3 provides
When an application for writs is sought to review the actions of a trial court, the trial court shall fix a reasonable time within which the application shall be filed in the appellate court, not to exceed thirty days from the date of the ruling at issue. Upon proper showing, the trial court or the appellate court may extend the time for filing the application upon the filing of a motion for extension of return date by the applicant, filed within the original or an extended return period. An application not filed in the appellate court within that time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant's fault. The application for writs shall contain documentation of the return date and any extensions thereof; any application which does not contain this documentation may not be considered by the appellate court.
Louisiana Courts of Appeal Uniform Rule 4-3 (emphasis added). While the trial court set the return date as May 8, 1998, it did not extend the time for filing the application.
. Our cases suggest that we should defer to the state court's determination that an application is "properly filed.” The Tenth Circuit, however, recently held that a state court’s decision to reach the merits of a case does not answer the question of whether the application was "properly filed.” Gibson v. Klinger,
. Respondent contends that Melancon did not file his application for a supervisory writ to the Louisiana Supreme Court within thirty days of the Court of Appeal’s August 13, 1998 denial of relief. See Supreme Court Rule X, § 5(a). Melancon, however, filed a timely motion for rehearing, which was not denied until September 30, 1998. Thus, Melancon's application to the Supreme Court on October 30, 1998, was timely because it was filed thirty days after the petition for rehearing was denied. Id.
Concurrence Opinion
concurring in part, dissenting in part:
I respectfully dissent from the majority’s determination that Melancon’s claims before the state trial court were no longer pending in state court when he failed to file timely for a supervisory writ with the Louisiana Court of Appeal or to obtain an extension. I concur in all other aspects of the majority opinion. '
Because Melancon did not file his application until May 8, 1998, the issues to be resolved in this case, as stated by the majority, are: (1) whether Melancon’s application for a supervisory writ to the Louisiana Court of Appeal was “properly filed” under 28 U.S.C. § 2244(d)(2) to warrant tolling the time between May 8, 1998, and February 5, 1999, the date on which the Louisiana Supreme Court denied his application for a supervisory writ and (2) whether Melancon’s claims before the trial court were “pending” between the trial court’s December 9, 1997, denial of relief and his May 8, 1998, application to the Louisiana Court of Appeal to warrant tolling under § 2244(d)(2).
Regarding the first issue, the majority readily finds that because Louisiana Court of Appeal Rule 4-3 allows a court of appeal to consider an application for a supervisory writ that was not timely filed and the Louisiana Court of Appeal did so in Melan-con’s case, his application was “properly filed” in state court. Thus, the majority considers the main issue to be when his state habeas application was considered “pending” under § 2244(d)(2).
Consistent with other circuits that have considered -the issue, the majority holds that a state habeas application is “pending” during the intervals between the state court’s disposition of a state habeas petition and the petitioner’s timely filing of a petition for review at the next level. Thus, it finds that the limitations period for Me-lancon to file his § 2254 petition was tolled from May 8, 1998, (since that state filing is considered “properly filed”) to February 5, 1999, while the properly filed habeas applications were pending.
The majority notes, however, that Me-lancon’s federal habeas petition requires
While the majority’s conclusion that Me-lancoris claims before the trial court were no longer pending when he failed to file timely for a supervisory writ with the Louisiana Court of Appeal is not without some jurisprudential support, I am persuaded by a recent decision by the Ninth Circuit. In Saffold v. Newland,
In the instant case, the majority correctly notes that Congress did not intend to permit petitioners to toll the limitations period for filing habeas petitions indefinitely. However, Congress clearly intended to allow tolling while a properly filed habeas petition is pending before a state court. The tolling provision in § 2244(d)(2) inherently defers to state rules and procedures, particularly those pertaining to the timeliness of a writ application. If a state permits an exception to a filing deadline, then it follows that for § 2244(d)(2) tolling purposes, federal courts should as well. In my view, once a state court decides to consider the merits of an untimely petition, that petition should be “purged” of all effects, includ
Because I would hold that Melancon is entitled to tolling of the time that lapsed between the trial court’s disposition of his case on December 9, 1997, and Melancon’s May 8, 1998, habeas application to the court of appeal, I respectfully dissent.