259 F.3d 401 | 5th Cir. | 2001
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, 216 F.3d 518, 520 (5th Cir.2000). The one year period therefore began on April 24, 1996 and continued until Melancon filed his state post conviction application on November 6, 1996, encompassing 196 days of the limitations period. From that point, the limitations period was clearly tolled until December 9, 1997, when the trial court denied post conviction relief.
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, 199 F.3d 116, 119 (2d Cir.1999); Swartz v. Meyers, 204 F.3d 417 (3d Cir.2000); Taylor v. Lee, 186 F.3d 557, 561 (4th Cir.1999); Peterson v. Gammon, 200 F.3d 1202 (8th Cir.2000); Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir.1999); Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir.2000). These cases note that finding that state applications are “pending” after a disposition but before the timely filed appeal is a logical construction of the statute. Including the time period before an appeal is timely filed from the lower court’s judgment as time when an application is “pending” is consistent with the concept of state exhaustion of remedies: If the time between a disposition but before a timely filed appeal is not tolled, a habeas petitioner is likely to file a protective federal petition before he has fully exercised all state appeals if there is a possibility that the right to federal habeas might be extinguished. We find this reasoning persuasive, and therefore hold that § 2244(d)(2) tolls the entire period allotted for timely state appellate review. Melan-con’s § 2254 petition was therefore tolled from May 8, 1998, to February 5, 1999, while his properly filed state habeas applications were “pending.”
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, 227 F.3d 977 (7th Cir.2000); Gibson v. Klinger, 232 F.3d 799 (10th Cir.2000). But see Saffold v. Newland, 224 F.3d 1087 (9th Cir.2000) (holding that all time from the commencement of the collateral attack is excluded under § 2244(d)(2)). In holding that a petitioner’s application was not “pending” until the petitioner actually sought his appeal, the Tenth Circuit reasoned that a petitioner who is not actually in the legitimate process of appealing is not “attempting to exhaust state court remedies” and therefore is not entitled to the tolling provision. Gibson, 232 F.3d at 806-07. The Seventh Circuit noted that allowing tolling under § 2244(d)(2) “after the time for further review has expired without further
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, 217 F.3d at 309. We reasoned, based on definitions of “pending” articulated in other circuits, that a case was no longer pending when further appellate review was unavailable. Id. at 310. While this holding was expressly limited to situations in which a state court failed to consider the merits of the untimely application, Id. at 311 n. 8., it applies equally to situations in which a state court did consider the merits of an untimely application. At the point when the state limitations period expired, a petitioner is not entitled to further appellate review and, therefore, he has no application “pending” in state court. A state court’s subsequent decision to allow review may toll the time relating directly to the application, but it does not change the fact that the application was not pending prior to the application. Thus, after the appeal period has lapsed, an application ceases to be pending but a subsequent properly filed application entitles the petitioner to additional tolling beginning at the time of the “proper” filing. This finding is consistent with Congress’s intent to encourage exhaustion of state remedies without allowing petitioners to indefinitely toll the limitations period.
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, 184 F.3d 398, 402 (5th Cir.1999). Although the parties in this case did not explicitly raise the issue of equitable tolling, Melancon’s pro se application for habeas relief is entitled to liberal construction. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). Melancon’s argument that he should not be punished for the trial court’s improper setting of the return date on his application can therefore be treated as a request for equitable tolling. Coleman, 184 F.3d at 402 (construing the pro se petitioner’s argument that the “mailbox rule” should apply to his state habeas application as a request for equitable relief).
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, 227 F.3d 260, 262 (5th Cir.2000); Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.2000); Coleman, 184 F.3d at 403. After the Louisiana Supreme Court denied Melancon’s application for a supervisory writ, Melancon waited more than four months to file his federal habeas petition. Because Melancon did not expediently file his federal habeas petition, this circumstance is not extraordinary enough to qualify for equitable tolling under § 2244(d)(1).
IV
For the foregoing reasons, we AFFIRM the district court’s dismissal of Melancon’s § 2254 application as time-barred.
AFFIRMED.
. 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, 232 F.3d 799, 806 (10th Cir.2000) ("Having adopted an approach that does not consider state court decisions that petitions are procedurally barred, we will not adopt a contrary approach when state courts decide to reach the merits of petitions.”). While we follow the Tenth Circuit in looking only to state procedural filing requirements in determining whether something is "properly filed” and not to whether a state court ultimately determined the application to be procedurally barred, our concerns over comity and exhaustion of state remedies cut the other way when a state court determines that something is not procedurally barred. Federal courts should not undermine a state's decision to hear the merits of a petition by refusing to toll the period of limitations under § 2244(d)(1) while the petition is pending. See Villegas v. Johnson, 184 F.3d 467, 471 (5th Cir.1999)("we find it unlikely that Congress intended its tolling provision to result in indifference to, or even interference with, a given state's handling of petitions for post-conviction relief.”).
. 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 in Part
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, 250 F.3d 1262, 1266-67 (9th Cir.2001), amending Saffold v. Newland, 224 F.3d 1087 (9th Cir.2000), the court determined that where the California Supreme Court considered the merits of a petition for a writ of habeas corpus, even though it was submitted four and one-half months after the court of appeal denied relief, the petitioner was entitled to tolling of the time between the court of appeal’s denial and the California Supreme Court’s rejection of the petitioner’s claims. The court tolled the intervening time even though the California Supreme Court had applied the untimeliness bar as an alternative ground for denying relief. Saffold, 250 F.3d at 1266-67. The court found it significant that the California Supreme Court had considered the petition “on the merits.” Id. The court stated that “[t]he whole purpose of the tolling requirement is to permit state courts to address the merits of the petitioner’s claim” and that “[tjolling AEDPA’s statute of limitations until the state has fully completed its review reinforces comity and respect between our respective judicial systems.” Id. at 1267 (internal quotations omitted) (alteration in original). Furthermore, the court declined “to adopt a rule that would require [a habeas petitioner] to have filed his federal petition before the California Supreme Court ruled on the merits of his claim.” Id. Thus, the court concluded that the petitioner was entitled “to exclude from the calculation of the one-year limitation the entire period from the filing of his first state habeas petition in Superior Court until the denial of his habeas petition by the California Supreme Court.” Id. at 1268.
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.
