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
10
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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