IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 99-20398
_______________
CHRISTOPHER J. EMERSON,
Petitioner - Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent - Appellee.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
March 15, 2001
Before JOLLY, MAGILL* and BENAVIDES, Circuit Judges.
MAGILL, Circuit Judge:
Christopher J. Emerson filed a habeas petition in district
court, challenging the constitutionality of his Texas state court
conviction for aggravated sexual assault. A magistrate judge
dismissed Emerson's petition as time-barred under the
Antiterrorism and Effective Death Penalty Act ("AEDPA"). Emerson
appeals, and we vacate the judgment and remand for further
proceedings.
I.
A Texas jury convicted Emerson of aggravated sexual assault,
*
Circuit Judge of the Eighth Circuit, sitting by designation.
and the trial court sentenced him to thirty-five years
imprisonment. After Emerson exhausted direct review of his
conviction, he filed a state habeas application, which the Texas
Court of Criminal Appeals denied on June 21, 1995. On June 26,
1995, Emerson submitted a motion to the Texas Court of Criminal
Appeals entitled "Suggestion That The Court Reconsider On Its Own
Motion the denial of the Application for Writ of Habeas Corpus,"
which the court denied on January 29, 1997.
On January 28, 1998, pursuant to 28 U.S.C. § 2254, Emerson
filed a habeas application in federal district court. A
magistrate judge dismissed Emerson's petition as time-barred
under AEDPA. This Court granted Emerson a Certificate of
Appealability on the issue of "whether his state motion for
reconsideration toll[ed] his one-year limitations period" and
made his petition timely.
II.
We review de novo the district court's denial of Emerson's
habeas application on procedural grounds. Johnson v. Cain, 215
F.3d 489, 494 (5th Cir. 2000). AEDPA applies to this case
because Emerson filed his federal habeas petition on January 28,
1998, after AEDPA's effective date, April 24, 1996. See Williams
v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). AEDPA places a one-
year limitations period on applications for federal habeas
relief. 28 U.S.C. § 2244(d)(1) (1996). Emerson's conviction
became final before AEDPA's effective date, so Emerson had one
2
year from April 24, 1996, to file his federal habeas petition.
See Smith v. Ward, 209 F.3d 383, 384 (5th Cir. 2000). This one-
year period is tolled, however, during the time that Emerson
submitted a "properly filed application for State post-conviction
or other collateral review." 28 U.S.C. § 2244(d)(2). The
question presented in this case, therefore, is whether Emerson
"properly filed" his motion, entitled "Suggestion That The Court
Reconsider On Its Own Motion the denial of the Application for
Writ of Habeas Corpus," under Texas law.
As an initial matter, the State argues that Emerson did not
"file" his suggestion for reconsideration with the Texas Court of
Criminal Appeals. We disagree. In Artuz v. Bennett, 121 S. Ct.
361 (2000), the Supreme Court held that a habeas application is
"filed" "when it is delivered to, and accepted by, the
appropriate court officer for placement in the official record."
Id. at 363. Emerson delivered his suggestion for reconsideration
to the court, and the court noted in its docket sheet that
Emerson had delivered a "mot for recon." We therefore conclude
that Emerson "filed" his suggestion for reconsideration.
The next question is whether Emerson "properly" filed his
suggestion for reconsideration under Texas law. In Artuz, the
Court examined whether a petitioner properly filed his state
habeas application under New York law. The government claimed
that two state statutes, which barred both raising issues that a
court had previously decided and raising claims not raised on
3
direct appeal, presented procedural bars to the petitioner's
claims, thereby making the petitioner's application improperly
filed. 121 S. Ct. at 363. In other words, the government argued
that a state habeas application is not properly filed under §
2244(d)(2) "unless it complies with all mandatory state-law
procedural requirements that would bar review of the merits of
the application." Id.
The Artuz Court began by defining a habeas application as
"'properly filed' when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings."
Id. Compare Villegas v. Johnson, 184 F.3d 467, 470 & n.2 (5th
Cir. 1999) (defining a habeas application as "properly filed" if
it conforms with the state's procedural filing requirements,
i.e., "those prerequisites that must be satisfied before a state
court will allow a petition to be filed and accorded some level
of judicial review"). As examples of "the applicable laws and
rules governing filings," the Court listed "the form of the
document, the time limits upon its delivery, the court and office
in which it must be lodged, and the requisite filing fee." 121
S. Ct. at 364. The Court concluded that the question whether a
petitioner has properly filed an application "is quite separate
from the question whether the claims contained in the application
are meritorious and free of procedural bar." 121 S. Ct. at 364.
In concluding that the petitioner properly filed his state habeas
application, the Court differentiated statutes that set forth a
4
condition to filing from statutes, such as the New York laws at
issue in Artuz, that set forth a condition to obtaining relief.
Id. at 365. Accordingly, the Court held that even if the
petitioner failed to comply with the state laws at issue, he
nevertheless properly filed his state habeas application for
purposes of § 2244(d)(2). Id.
In a number of pre-Artuz cases, this Court analyzed whether
habeas petitioners "properly filed" their applications under
state law. In Villegas, for instance, we examined whether the
petitioner had "properly filed" his state habeas application when
the Texas state courts had dismissed the application pursuant to
Tex. Code Crim. P. art. 11.07, § 4, which precludes consideration
of a successive habeas application unless: (1) the application
alleges facts establishing that the basis for the claim was
unavailable when the petitioner filed the previous application;
or (2) if no rational juror could have found the petitioner
guilty had the constitutional violation not occurred. Tex. Code
Crim. P. Ann. art. 11.07, § 4 (West 2000); 184 F.3d at 472 n.4.
We noted that although article 11.07, § 4 discouraged successive
habeas applications, it also informed prospective petitioners
that courts would accept and review successive petitions, thereby
holding out the possibility of a successful successive petition.
184 F.3d at 472 n.4. Therefore, we held that the petitioner
"properly filed" a successive application under Texas law. Id.
at 473.
5
Similarly, in Smith, 209 F.3d 383, this Court held that the
petitioner "properly filed" his state habeas application despite
La. Code Crim. P. art. 930.8A, which imposes a three-year limit
for filing habeas applications, but provides discretion to state
courts to consider untimely applications under certain
circumstances. Id. at 384. We noted that article 930.8A does
not pose an absolute bar to filing; indeed, Louisiana courts
accept and review petitioners' applications to determine whether
any of the statutory exceptions to untimely filing are
applicable, thereby holding out the possibility of a successful
untimely petition. Id. at 385.1
We recently reexamined the "properly filed" requirement in
Williams. 217 F.3d 303. Under Louisiana Supreme Court Rule X, §
5(a), the petitioner had thirty days from the intermediate state
appellate court's denial of his application for a supervisory
writ to file an application for a supervisory writ in the
Louisiana Supreme Court. Id. at 304. Despite this rule, the
petitioner did not file his application with the Louisiana
Supreme Court until May 1995, fourteen months after the
intermediate appellate court's denial of his application. Id.
In April 1997, the Louisiana Supreme Court rejected the
petitioner's application. Id. The petitioner then filed a
1
The Artuz Court, citing Smith, stated that it expressed no
view on "whether the existence of certain exceptions to a timely
filing requirement can prevent a late application from being
considered improperly filed." 121 S. Ct. at 364 n.2.
6
federal habeas petition in July 1997, contending that §
2244(d)(2) applied to suspend AEDPA's one-year limitations period
until the Louisiana Supreme Court denied his application for a
supervisory writ. Id. In rejecting the petitioner's contention,
the Williams court distinguished Villegas and Smith by pointing
out that the statutes at issue in those cases required the state
courts to examine "issues related to the substance of the state
applications to determine whether the applications fell within a
clearly-defined exception to the time requirements." Id. at 309.
By contrast, we noted that the rule at issue in Williams provided
no exceptions and therefore required no examination of the
merits. Id.
Just as in Williams, the rule at issue here seemingly
provides no exceptions and does not require an examination of the
merits of Emerson's claims. When Emerson filed his suggestion
for reconsideration with the Texas Court of Criminal Appeals, Tex
R. App. P. § 213(b) provided: "No motions for rehearing or
reconsideration will be entertained from a denial of relief
without docketing of the cause. The court, however, may on its
own motion, reconsider such initial disposition." Tex R. App. P.
§ 213(b) (Vernon's Supp. 1995). Section 213(b) provided no
exception to its prohibition of habeas petitioners from filing
motions for reconsideration, leaving the Texas Court of Criminal
Appeals without any need to examine the merits of Emerson's
underlying claims. Moreover, there is no evidence that the Texas
7
Court of Criminal Appeals considered Emerson's motion to be
properly filed; indeed, the court declined to reconsider its
decision without opinion.
Although we are cognizant of the limitations of post-
enactment legislative history, we find additional support for our
interpretation of § 213(b) in the provision's recent amendment.
In 1997, § 213(b) was superseded by Tex. R. App. P. 79.2(d),
which provides: "A motion for rehearing an order that denies
habeas corpus relief under Code of Criminal Procedure, articles
11.07 or 11.071, may not be filed. The Court may on its own
initiative reconsider the case." Tex. R. App. P. 79.2(d) (West
2000). To the extent that § 213(b) was unclear, Rule 79.2(d)
unambiguously directs state habeas petitioners not to file
motions for rehearing. Moreover, a comment to Rule 79.2(d)
states: "This is former Rule 230, and the portion of former Rule
213 that prohibited motions for rehearing." Tex. R. App. P. §
FIVE, R. 79, Refs & Annos (emphasis added). This comment
demonstrates the legislature's understanding that § 213(b) barred
state habeas petitioners such as Emerson from filing motions for
rehearing and reconsideration. Furthermore, the comment to Rule
79.2(d) continues by noting the legislature's intent to make two
substantive changes unrelated to the filing of motions to
reconsider denials of habeas relief and then states: "Other
nonsubstantive changes are made." Id. This comment suggests
that the legislature understood § 213(b) as we do, i.e.,
8
preventing state habeas petitioners from filing motions for
reconsideration.
However, the Texas Court of Criminal Appeals has entertained
motions for reconsideration, notwithstanding the language in §
213(b) or Rule 79.2(d). See Ex parte Graham, 853 S.W.2d 565
(Tex. Crim. App. 1993); Ex parte Smith, 977 S.W.2d 610 (Tex.
Crim. App. 1998) (en banc); Ex parte Lemke, 13 S.W.3d 791 (Tex.
Crim. App. 2000). In Graham, after the Texas Court of Criminal
Appeals denied the state habeas petitioner's application for
relief, the petitioner filed a motion requesting the court to
reconsider its denial. 853 S.W.2d at 566. The court, citing §
213(b), agreed to reconsider its initial denial, though stating
that it reconsidered its prior decision on its "own motion." Id.
Similarly, in Smith, the Texas Court of Criminal Appeals
dismissed a state habeas petitioner's application for post-
conviction relief. 977 S.W.2d at 610. The petitioner then filed
a "suggestion for reconsideration," which the court considered
before rejecting. Id. at 610 n.1. Recently, in Lemke, a state
habeas petitioner filed a "Motion for Reconsideration (On the
Court's Own Motion) of the Refusal to Grant Relief in Application
for Writ of Habeas Corpus." 13 S.W.2d at 793. The court
"granted the Motion for Reconsideration and filed and set the
instant application for submission." Id. Therefore, the Texas
courts have provided state habeas petitioners with the hope that
a motion or suggestion for reconsideration may be successful.
9
Meanwhile, we are unable to find a single case in which the Texas
courts have held that § 213(b) does not permit the filing of a
motion for reconsideration.
Although we might have read § 213(b) to prohibit Emerson's
suggestion for reconsideration, given Texas case law, as well as
the Artuz Court's broad reading of the phrase "properly filed,"
we must conclude that Emerson "properly filed" his suggestion for
reconsideration. Cf. Barr v. City of Columbia, 378 U.S. 146, 149
(1964) (holding that state procedural rules that are not
"strictly or regularly followed" may not bar Supreme Court
review). In short, we defer to Texas courts' application of
state law. Additionally, part of the congressional rationale in
passing AEDPA stemmed from a desire to require habeas petitioners
to exhaust their claims in state courts. However, since habeas
petitioners such as Emerson may be unable to predict whether the
Texas courts would apply the literal language of § 213(b) or the
holdings of Graham, Smith, and Lemke, many would bypass possible
state court consideration of their claims and move directly to
federal court. See Villegas, 184 F.3d at 472; see also Lovasz v.
Vaughn, 134 F.3d 146, 148 (3d Cir. 1998) ("Nor should we
discourage petitioners from exhausting all their claims in state
court, even by means of a second or subsequent petition for post-
conviction relief where permissible under state law, before
seeking habeas review in federal court.").
The State contends that since there is no prescribed period
10
for filing a suggestion for reconsideration or for a Texas court
to reconsider the denial of habeas relief on its own motion, then
Emerson's argument that the state writ should be considered
pending during the period in which the court could reconsider its
decision on its own motion would result in the statute of
limitations tolling indefinitely until a federal habeas petition
is filed. However, our holding does not have such a broad reach.
We simply hold that, given Artuz and Texas case law allowing
habeas petitioners to file suggestions or motions for
reconsideration, AEDPA's one-year statute of limitations is
tolled during the period in which a Texas habeas petitioner has
filed such a motion. The tolling lasts only as long as the Texas
courts take to resolve the motion or suggestion for
reconsideration. See Villegas, 184 F.3d at 472. Finally, the
Texas courts have the ability to alleviate the State's concerns
by sanctioning petitioners who abuse the judicial process. See
id. at 473.
III.
Emerson's suggestion for reconsideration of the Texas Court
of Criminal Appeals' decision tolled AEDPA's one-year limitations
period. We therefore VACATE the judgment and REMAND for further
proceedings consistent with this opinion.
11