Moore v. Cain

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 01-30953

FLOYD J. MOORE, SR.,

Petitioner-Appellant,

versus

BURL CAIN,

Respondent-Appellee.
_________________________________________________________________

Appeal from the United States District Court
for the Western District of Louisiana

_________________________________________________________________
July 11, 2002

Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue is whether the Antiterrorism and Effective Death

Penalty Act’s (AEDPA’s) one-year limitations period, 28 U.S.C. §

2244(d)(1), was tolled by a Louisiana state prisoner’s state court

application for a writ of mandamus, seeking to have the state trial

court ordered to rule on his habeas application. AFFIRMED.

I.

Floyd Moore was convicted of armed robbery and sentenced to

120 years imprisonment. State v. Moore, 575 So. 2d 928, 931 (La.

Ct. App. 1991). On 27 February 1991, the Louisiana Second Circuit

Court of Appeal (Second Circuit) affirmed, id. at 937; Moore did

not seek direct review by the Louisiana Supreme Court.
 In February 1994, Moore filed his first state habeas

application. The trial court dismissed the application that April

for failure to comply with LA. CODE CRIM. PROC. ANN. art. 926

(requirements for state habeas application). Moore filed, and the

trial court granted, a motion to appeal the denial to the Second

Circuit.

In June 1996, approximately two months after AEDPA was

enacted, Moore filed his second state habeas application. That

July, the state trial court denied the application because, inter

alia, it again did not comply with article 926. That September,

the trial court ordered that Moore’s request for supervisory writs

to review the habeas denial be filed in the Second Circuit.

That November (1996), two appeals were lodged in the Second

Circuit. The Second Circuit’s orders refer to trial court case

numbers 53712 and 53713 — the numbers assigned to each armed

robbery charge during Moore’s initial criminal proceedings.

(Accordingly, it appears an appeal was docketed for each charge for

which he was convicted.) Later that November, the Second Circuit

ordered the two matters consolidated and converted to an

application for a writ of review. On 19 December 1996, a date

pertinent to the tolling issue at hand, the Second Circuit denied

the writ, holding that the trial court did not err in denying

habeas relief.

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 Much earlier, on 5 December 1995, during the time in which

Moore sought state habeas relief, he also filed an application for

a writ of mandamus with the Second Circuit; it was docketed as

number 28479-KH. According to the Second Circuit’s 11 January 1996

denial of that application, Moore’s application had asked that the

trial court be directed to rule on his first (February 1994) habeas

application. (In Moore’s subsequent papers in federal district

court, he stated that the purpose of the mandamus application was

to have “the trial court ... rule o[n] his original application for

post conviction relief with supplements included”. The mandamus

application is not in the record. Our assumption of the

application’s contents is based on the orders of the Second Circuit

and the Louisiana Supreme Court.)

The Second Circuit denied mandamus relief because, in April

1994, the trial court had ruled on that first habeas application.

On 22 February and 28 March 1996, the Second Circuit denied Moore’s

motions to reconsider the mandamus ruling.

On 11 March 1996, the Louisiana Supreme Court received and

filed Moore’s application for a supervisory writ from the Second

Circuit, bearing its docket number 28479-KH, the number assigned to

the mandamus application. On 16 May 1997, another date pertinent

to the tolling issue at hand, the Louisiana Supreme Court denied

the writ application concerning mandamus. State ex rel. Moore v.

State, 693 So. 2d 790 (La. 1997).

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 Moore did not file his federal habeas application until 15 May

1998. The magistrate judge recommended its dismissal as time-

barred on the ground that none of Moore’s state applications tolled

AEDPA’s limitations period. This was because they were untimely

under LA. CODE CRIM. PROC. ANN. art. 930.8, which provided that an

application for post-conviction relief shall not be considered

unless it is filed within three years after a conviction becomes

final. (Article 930.8 was amended in 1999 and lowered the

limitations period to two years. LA. CODE CRIM. PROC. ANN. art. 930.8

(West Supp. 2002).) The district court accepted the recommendation

and in July 2000 dismissed Moore’s habeas application.

Our court granted an AEDPA certificate of appealability (COA)

and vacated and remanded for a determination whether, in the light

of Smith v. Ward, 209 F.3d 383 (5th Cir. 2000) (holding AEDPA

limitations period tolled despite state habeas application’s

untimeliness under article 930.8), Moore’s “second and third state

habeas applications” tolled the limitations period. Moore v. Cain,

No. 99-30858, at 2 (5th Cir. 28 June 2000) (unpublished). (Moore

apparently filed a third post-conviction application in the state

trial court in December 1997, seeking another appeal. After the

trial court denied and dismissed the application, the Second

Circuit denied a writ of review on 25 March 1998, holding that the

application was time-barred under article 930.8. Moore does not

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rely on this third state application to toll the AEDPA limitations

period.)

On remand, the magistrate judge again recommended dismissal as

time-barred, on the basis that neither the 1994 nor the 1996 state

habeas applications were “properly filed” as required by 28 U.S.C.

§ 2244(d)(2) and, as a result, did not toll AEDPA’s limitations

period. Moore v. Cain, No. 98-921-M (W.D. La. 25 Apr. 2001)

(Moore-USDC). In addition, the magistrate judge recommended that

the pendency of the mandamus application until 16 May 1997 did not

toll that limitations period because it was a “continuing attempt

to litigate [the] improperly filed [state habeas] application”.

Id. at 7.

In July 2001, the district judge accepted the report and

recommendation and dismissed Moore’s habeas petition. That August,

a COA was denied by the district court.

That November, however, our court granted Moore a COA on the

following issue: “[W]hether the district court erred in failing to

consider whether Moore’s mandamus petition constituted ‘other

collateral relief’ [pursuant to § 2244(d)(2)] so as to toll the

limitations period under [that section]”. Moore v. Cain, No. 01-

30953, at 2 (5th Cir. 29 Nov. 2001) (unpublished).

II.

At issue is whether AEDPA’s limitations period was tolled

between 19 December 1996 (Second Circuit’s writ denial concerning

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the trial court’s denial of habeas relief) and 16 May 1997

(Louisiana Supreme Court’s writ denial concerning Moore’s mandamus

application). Restated, did the pendency of the mandamus request

(filed pre-AEDPA and not denied by the Louisiana Supreme Court

until mid-May 1997) toll the limitations period? “We review de

novo the ... denial of [a] habeas application on procedural

grounds”. Melancon v. Kaylo, 259 F.3d 401, 404 (5th Cir. 2001).

A.

Neither the district court nor the State’s brief addresses

whether Moore’s federal habeas petition is exhausted; it appears it

is not. “Applicants seeking habeas relief under [28 U.S.C.] § 2254

are required to exhaust all claims in state court prior to

requesting federal collateral relief.” Mercadel v. Cain, 179 F.3d

271, 275 (5th Cir. 1999). “The exhaustion requirement is satisfied

when the substance of the federal habeas claim has been fairly

presented to the highest state court”. Id. (emphasis added).

It does not appear that Moore has presented his habeas claims

to the Louisiana Supreme Court. He did not seek review in the

Louisiana Supreme Court after the Second Circuit, on direct appeal,

affirmed his convictions. Furthermore, concerning his 1994 and

1996 state habeas applications, after the Second Circuit’s writ

denial in December 1996, Moore never sought review in the Louisiana

Supreme Court. The May 1997 Louisiana Supreme Court writ denial

concerned only his mandamus application. In addition, nothing in

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the record suggests that Moore sought review in the Louisiana

Supreme Court concerning his third state habeas application.

Moore apparently applied to the Louisiana Supreme Court for a

writ concerning a motion he filed in 2000 in the state trial court,

contending that his sentence is illegal. Nevertheless, he never

allowed the Louisiana Supreme Court to rule on this writ

application; it was dismissed at his request. State ex rel. Moore

v. State, 788 So. 2d 439 (La. 2001).

Although the State has not addressed whether Moore’s federal

petition is unexhausted for failure to present his federal claims

to Louisiana’s highest court, the

state’s implicit waiver of the exhaustion
issue ... is not determinative. Under AEDPA,
“[a] state shall not be deemed to have waived
the exhaustion requirement or be estopped from
reliance upon the requirement unless the
State, through counsel, expressly waives the
requirement”.

Mercadel, 179 F.3d at 276 (emphasis added; alteration in original;

quoting 28 U.S.C. § 2254(b)(3)).

We need not decide this issue. Assuming exhaustion, and for

the reasons stated infra, Moore’s petition is untimely.

B.

The State does maintain that Moore’s federal petition is time-

barred. AEDPA provides in part:

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

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 of a State Court. The limitation period shall
run from the latest of —

(A) the date on which the judgment
became final by the conclusion of
direct review or the expiration of
the time for seeking such review....

28 U.S.C. § 2244(d)(1).

Moore’s conviction became final in 1991, after the Second

Circuit affirmed his conviction. See LA. CODE CRIM. PROC. ANN. art.

922(B) (“A judgment rendered by the supreme court or other

appellate court becomes final when the delay for applying for a

rehearing has expired and no application therefor has been made.”)

But, because that conviction became final prior to 24 April 1996,

AEDPA’s effective date, its one-year limitations period did not

begin to run until that later date. See Flanagan v. Johnson, 154

F.3d 196, 200 (5th Cir. 1998).

Accordingly, but for the tolling provision discussed infra,

Moore’s federal habeas petition had to be filed on or before 24

April 1997. See id. at 202. It was not filed until 15 May 1998.

The tolling provision provides that “[t]he 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 ... [§ 2244(d)(1)]”. 28 U.S.C. § 2244(d)(2) (emphasis

added). As stated, the district court determined: neither the

1994 nor the 1996 state habeas applications were “properly filed”;

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and, as a result, they did not toll the limitations period. Moore-

USDC, at 6, 8.

According to the district court, both habeas applications were

dismissed by the trial court because of Moore’s “failure to conform

to various [state] procedural filing requirements set forth in ...

art. 926". Id. at 5. Article 926 requires, inter alia, that a

“copy of the judgment of conviction and sentence shall be annexed

to the petition”, and that the application shall name the

custodian. LA. CODE CRIM. PROC. ANN. art. 926(A) & (B).

In holding the applications were not “properly filed”, the

district court relied on Williams v. Cain, 217 F.3d 303, 306 (5th

Cir. 2000) (internal quotation marks omitted), which held an

application is “properly filed” when it “conforms with a state’s

applicable procedural filing requirements”, defined as “those

prerequisites that must be satisfied before a state court will

allow a petition to be filed and accorded some level of judicial

review”.

Assuming arguendo the district court is incorrect that a state

habeas application’s not conforming to article 926 is not “properly

filed”, the Second Circuit’s writ denial occurred on 19 December

1996 (during the limitations period that commenced on 24 April

1996, but was tolled by the pending state habeas application); and

Moore’s federal habeas petition was not filed until 15 May 1998,

far more than a year later. Accordingly, assuming Moore’s state

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habeas applications were “properly filed”, the only way his federal

petition is timely is if AEDPA’s limitations period was tolled

between the Second Circuit’s writ denial (19 December 1996) and the

Louisiana Supreme Court’s writ denial concerning his mandamus

application (16 May 1997). (The Sixth Circuit has held that “a

state petition for post-conviction or other collateral review must

present a federally cognizable claim for it to toll the statute of

limitations pursuant to ... § 2244(d)(2)”. Palmer v. Carlton, 276

F.3d 777, 780 (6th Cir. 2002). It is unknown whether Moore’s

mandamus application did so, because it is not in the record on

appeal. In the light of our holding the federal application time-

barred, we need not reach this issue.)

The COA states the issue as whether the mandamus application

constitutes “other collateral relief”. “[C]ollateral review”, not

“collateral relief”, is used in § 2244(d)(2). Therefore, pursuant

to the language of § 2244(d)(2), at issue is whether the mandamus

application is an “application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim”.

(Emphasis added.)

“Statutory interpretation begins, of course, with the plain

language of the statute. When the [statute’s] language ... is

plain we must abide by it; we may depart from its meaning only to

avoid a result so bizarre that Congress could not have intended

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it.” Withrow v. Roell, 288 F.3d 199, 203 (5th Cir. 2002) (internal

citation and quotation marks omitted).

In considering the language “post-conviction or other

collateral”, words which modify “review with respect to the

pertinent judgment or claim”, the Supreme Court has noted:

“Incarceration pursuant to a state criminal conviction may be by

far the most common and most familiar basis for satisfaction of the

‘in custody’ requirement in § 2254 cases”. Duncan v. Walker, 533

U.S. 167, 176 (2001). Nevertheless, the Court recognized that “it

is possible for ‘other collateral review’ to include review of a

state court judgment that is not a criminal conviction”. Id. at

175.

In further analyzing this language, the Court stated:

Congress also may have employed the
construction “post-conviction or other
collateral” in recognition of the diverse
terminology that different States employ to
represent the different forms of collateral
review that are available after a conviction.
In some jurisdictions, the term “post-
conviction” may denote a particular procedure
for review of a conviction that is distinct
from other forms of what conventionally is
considered to be postconviction review....
Congress may have refrained from exclusive
reliance on the term “post-conviction” so as
to leave no doubt that the tolling provision
applies to all types of state collateral
review available after a conviction and not
just to those denominated “post-conviction” in
the parlance of a particular jurisdiction.

Id. at 177 (emphasis added).

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 Accordingly, with this language, Congress meant to include

within the scope of § 2244(d)(2) those “properly filed”

applications, without respect to state nomenclature or the nature

of the petitioner’s state confinement, that, pursuant to the

wording of § 2244(d)(2), seek “review” of the “pertinent judgment

or claim”. For our purposes, the key inquiry is whether Moore’s

mandamus application sought “review” of the judgment pursuant to

which he is incarcerated.

In Louisiana, the scope and purpose of mandamus are consistent

with its generally understood use. Under Louisiana law: “Mandamus

is an extraordinary remedy which must be used by courts sparingly

to compel action that is clearly provided by the law, but only

where it is the only available remedy or where the delay occasioned

by the use of any other remedy would cause injustice”. Sanders v.

Woolridge, 729 So. 2d 715, 717 (La. Ct. App. 1999) (emphasis

added). Its “purpose ... is to compel the performance of the duty

owed to a person requesting a duty”. Id. (emphasis added).

Moore’s mandamus application apparently sought an order

directing the trial court to perform its duty. (Again, the

application is not in the record.) It did not challenge the

judgment pursuant to which Moore is incarcerated. Moreover, in

adjudicating the mandamus application, the circumstances

surrounding that judgment were not relevant. In other words, the

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propriety of that judgment had nothing to do with whether the trial

court should have been directed to rule.

In short, the application did not seek review of the judgment.

See, e.g., WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1944 (1986)

(defining “review” as, inter alia, “to reexamine judicially”; “to

go over or examine critically or deliberately”). Instead, it

sought a directive that the trial court rule. Accordingly, the

mandamus application did not toll the limitations period; it was

not a “properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment”.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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