IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30439
_____________________
MICHAEL MELANCON, also known
as Kevin A. Melancon
Petitioner-Appellant,
versus
BARON KAYLO, Warden,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
_________________________________________________________________
August 6, 2001
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Kevin A. Melancon, Louisiana prisoner # 98471, appeals the
district court’s dismissal of his 28 U.S.C. § 2254 petition as
time-barred. Melancon was granted a Certificate of Appealability
(“COA”) as to whether his supervisory writ application to the
Louisiana Court of Appeal was “properly filed” and whether his
state post-conviction application was “pending” until February 5,
1999, thereby allowing him to toll the limitations period under 28
U.S.C. § 2244(d)(2). Because we find that Melancon was not
entitled to tolling for a period of time that would make his § 2254
application timely, we affirm the dismissal.
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 Melancon’s
application for a supervisory writ.
On November 6, 1996,1 Melancon filed a state habeas
application contending that he was denied his Sixth Amendment right
to the effective assistance of counsel. In February 1997, after
the trial court failed to acknowledge his petition, Melancon filed
a writ of mandamus with the Louisiana Court of Appeal urging the
court to direct the Orleans Parish District Attorney to respond to
his application. The Court of Appeal granted this motion in April
1997 and directed the trial court to appoint Melancon an attorney
and to conduct an evidentiary hearing. On December 9, 1997, the
trial court denied Melancon’s habeas application on the merits.
On May 8, 1998, approximately five months after his
application for a supervisory writ was rendered untimely under
1
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.
2
Louisiana Court of Appeals Rule 4-3, Melancon 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 hearing 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 habeas 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 Melancon’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
3
that the one year statute of limitations was only tolled until
December 9, 1997, because the May 8, 1998 application for a
supervisory writ with the Court of Appeal was not “properly filed”
under the meaning of § 2244(d)(2). The district court also found
that even if Melancon was entitled to tolling while his application
for a supervisory writ was before the Court of Appeal, his
application was time-barred because the limitations period was not
tolled during the time between Melancon’s applications. The
district court therefore dismissed the § 2254 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.”
4
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. 1998). 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, Melancon had thirty days
to request review of the trial court’s determination, according to
Louisiana Court of Appeal Rule 4-3.2 However, Melancon did not
file his application for a supervisory writ to the Louisiana Court
of Appeal until May 8, 1998. The Louisiana Court of Appeal denied
2
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.
5
his application on the merits on August 13, 1998. His application
for rehearing and his application for a supervisory writ to the
Louisiana Supreme Court were then timely filed. After the
Louisiana Supreme Court’s denial of Melancon’s application on
February 5, 1999, the limitations period clearly ran until June 14,
1999, when Melancon filed his federal habeas application, adding
another 129 days to the limitations period.
This pattern of events leads to two issues, both of which must
be resolved in Melancon’s favor to find this habeas petition timely
filed. First, Melancon’s untimely application for a supervisory
writ to the Court of Appeal must have be considered “properly
filed” under § 2244(d)(2) to merit tolling the time between May 8,
1998 and February 5, 1999. Second, Melancon’s claims before the
trial court must have been “pending” between the trial court’s
December 9, 1997 denial of relief and his May 8, 1998 application
to the Court of Appeal to merit the tolling provision under §
2244(d)(2) for that time period. If the limitations period on
Melancon’s federal habeas application was not tolled for either of
those blocks of time, Melancon’s § 2254 application is untimely.
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
6
the Court of Appeal did consider Melancon’s application on the
merits, the May 8, 1998 application was “properly filed” in state
court.3 See Emerson, 243 F.3d at 934 (finding that we defer to
state courts’ application of state law when determining whether
something is “properly filed”); Dilworth v. Johnson, 215 F.3d 497,
501 (5th Cir. 2000) (noting that because the petitioner’s
application was “‘accorded some level of judicial review’ by the
state courts, it is considered a ‘properly filed application’ under
section 2244(d)(2)”) (citing Villegas v. Johnson, 184 F.3d 467, 470
n.2 (5th Cir. 1999)). Melancon’s subsequent application for
rehearing and application for a supervisory writ were both timely
3
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.”).
7
filed;4 thus, these applications also tolled the limitations
period.
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
application was “pending” during the time between the trial court’s
denial in December, 1997, and Melancon’s application for a
supervisory writ to the Court of Appeal in May, 1998, his § 2254
application was properly filed.
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
4
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.
8
addressed the issue has found that a state 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. See Bennett v. Artuz, 199
F.3d 116, 119 (2d Cir. 1999); Swartz v. Myers, 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. Melancon’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,
9
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, 227 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 action to continue the
litigation . . . would sap the federal statute of limitations of
10
much of its effect.” Fernandez, 227 F.3d at 980. Both circuits
expressed concern over the potential for indefinite tolling.
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
11
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
habeas 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.
III
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
12
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 can be equitably tolled in exceptional
circumstances. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.
1999). The district court’s error in setting the return date of
the application might warrant equitable tolling. “Equitable
tolling applies principally where the plaintiff is actively misled
by the defendant about the cause of action or is prevented in some
extraordinary way from asserting his rights.” Rashidi v. American
President Lines, 96 F.3d 124, 128 (5th Cir. 1996). Melancon seems
to have filed his untimely application for a supervisory writ in
accordance with the return date of May 8, 1998, set by the
Louisiana trial court.
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
13
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.
A F F I R M E D.
14
CARL E. STEWART, Circuit Judge, 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 Melancon’s
case, his application was “properly filed” in state court. Thus,
15
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 Melancon 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 Melancon’s federal habeas
petition requires tolling the time that lapsed between the trial
court’s disposition of the case on December 9, 1997, and Melancon’s
May 8, 1998, application to the court of appeal. It observes that
this Court recently held in Williams v. Cain, 217 F.3d 303, 309-
11(5th Cir. 2000), based on the definitions of “pending”
articulated in other circuits, that a case was no longer pending
when further appellate review was unavailable. However, it points
out that Williams’s holding was expressly limited to situations in
which a state court failed to consider the merits of the untimely
application. The majority then extends Williams’s holding to
situations in which the state court considered the merits of an
untimely application. Applying this rule, the majority finds that
16
Melancon’s habeas application was 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. It asserts
that this rule is “consistent with Congress’s intent to encourage
exhaustion of state remedies without allowing petitioners to
indefinitely toll the limitations period.”
While the majority’s conclusion that Melancon’s 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
17
requirement is to permit state courts to address the merits of the
petitioner’s claim” and that “[t]olling 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
18
petition should be “purged” of all effects, including those arising
in federal court, resulting from its former untimely status. As
with the California Supreme Court’s review of the habeas petition
on the merits in Saffold, the Louisiana Court of Appeal’s decision
to review Melancon’s habeas application on the merits should render
the untimeliness of the application inconsequential for §
2244(d)(2) tolling purposes. See Romero v. Roe, 130 F.Supp.2d
1148, 1150 (C.D. Cal. 2001) (“The key question, [for § 2244(d)(2)
tolling purposes] is whether a particular petition was resolved on
the merits by the state court, not on the particular length of time
between the disposition of the earlier petition and the filing of
the next.”).
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.
19