IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30428
Summary Calendar
JOHNNIE F. DIXON,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
January 7, 2003
Before GARWOOD, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:
Johnnie F. Dixon, Louisiana prisoner no. 305653, appeals the
dismissal, as untimely, of his federal habeas application brought
under 28 U.S.C. § 2254. Dixon was convicted of first-degree murder
and sentenced to life in prison for killing his ex-wife. See State
v. Dixon, 620 So. 2d 904, 906-07 (La. Ct. App. 1993). The district
court granted a Certificate of Appealability on whether the one
year limitation period of 28 U.S.C. § 2244(d) should have been
suspended “from the time the [state] trial judge denied [Dixon’s]
application for post-conviction relief until the deadline the trial
judge set for filing an application for supervisory writs with the
court of appeal, even though that date was longer than the 30-day
period provided in La. Ct. App. Rule 4-3.”
The Supreme Court recently held that “[a state post-
conviction] application is pending as long as the ordinary state
collateral review process is ‘in continuance’–i.e., ‘until the
completion of’ that process.” Carey v. Saffold, 122 S.Ct. 2134,
2138 (2002). “In other words, until the application has achieved
final resolution through the State’s post-conviction procedures, by
definition it remains ‘pending.’” Id.; see Melancon v. Kaylo, 259
F.3d 401, 406 (5th Cir. 2001). In Melancon, a panel of this court
held that an application ceased to be “pending” when application to
the next level of state-court review was not timely made.
The state trial court in Dixon’s case denied his application
for post-conviction relief on August 12, 1999. Rule 4-3 of
Louisiana’s Uniform Rules, Courts of Appeal, provides that the
trial court must state “a reasonable time,” “not to exceed thirty
days,” in which the applicant must apply to the appellate court.
However, the rule further provides that “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 date
period. . . .” LA. CT. APP. UNIFORM RULE 4-3.
2
Although Dixon filed his application for supervisory writs
more than thirty days after the denial of his original application
for relief, Dixon had both timely requested and received on
extension of the thirty day requirement. The state trial court
denied Dixon’s application for post-conviction relief on August 12,
1999; on August 20 or 23 Dixon filed in the trial court his “notice
of intent” to apply for supervisory writs to review that judgment
in which he requested that the court grant “leave to file his
application for supervisory writs” and that “this Court set a
reasonable time of not less than sixty (60) days from the filing of
this notice for the writ application to be filed with the First
Circuit Court of Appeal.” By order of August 26, the trial court
both granted Dixon “leave to file his application for supervisory
writs” and ordered “that the application for supervisory writs be
filed with the First Circuit Court of Appeal by October 29, 1999.”
Dixon filed his application for supervisory writs with the First
Circuit Court of Appeal on October 20, 1999.1
Louisiana courts consider the trial court’s setting of a
1
The Court of Appeal on March 24, 2000 denied Dixon’s
application for supervisory writ on the merits; nothing in its
order suggests that it viewed Dixon’s application to it as having
been even arguably untimely; the state has never taken the
position, either before any state court or at any time in this
federal habeas proceeding, that Dixon’s application for supervisory
writ to the Court of Appeal was untimely. It is undisputed, and
the Magistrate Judge and District Court below found, that less than
30 days following the decision of the Court of Appeal Dixon timely
applied for supervisory writs to the Supreme Court of Louisiana,
which on February 9, 2001 denied the application without any
explanation or comment.
3
return date later than thirty days to be an implicit extension of
the return date in accordance with Rule 4-3. See Brock v. Duhe,
521 So. 2d 1162, 1162 (La. 1988). This is at least so when the
filing of the return date is pursuant to the appellant’s timely
request for a return date beyond the thirty day limit, as it was in
Dixon’s case:
“If the notice of intent to seek writs and/or a motion
and order requesting a return date was filed with the
trial court within 30 days of the ruling at issue, this
Court has interpreted a return date set outside the 30
day period as an implicit extension of the return date by
the trial court.” Watts v. Dorignac, 681 So. 2d 955, 956
n.2 (La. Ct. App., 1st Cir., 1996).2
Because Dixon timely both sought and obtained an extension of
the appeal period, his application to the Louisiana Court of Appeal
was not only timely filed but was never in an untimely status, and
his case is thus distinguished from Melancon. Accordingly, all of
the time between the filing of his initial state post-conviction
application and the Louisiana Supreme Court’s denial of relief was
tolled (it being undisputed that Dixon timely sought review in the
Louisiana Supreme Court of the decision of the Louisiana Court of
Appeal). In Melancon this court agreed with the general rule “that
a state application is ‘pending’ during the intervals between the
2
See also Spangler v. Chiasson, 681 So. 2d 956, 957 n.2 (La.
Ct. App., 1st Cir. 1996); Dutruch v. Zurich-American Ins. Co., 681
So. 2d 953, 954 n.2 (La. Ct. App., 1st Cir. 1996); Causey v.
Caterpillar Machinery Corp., 822 So. 2d 188, 190 (La. Ct. App., 4th
Cir., 2002); Hester v. Hester, 715 So. 2d 40, 42 (La. Ct. App., 4th
Cir. 1998).
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state court’s disposition of a state habeas petition and the
petitioner’s timely filing of a petition for review at the next
level.” 259 F.3d at 406 (emphasis added). However, we held that
“Melancon no longer had an application [for post-conviction relief]
‘pending’ in state court when he failed to [timely] file an
application for a supervisory writ with the Court of Appeal and
failed to obtain an extension.” Id. at 407 (emphasis added). A
subsequently granted extension merely served to allow tolling
during the time after the application for writs was actually filed
pursuant thereto. Id.
In Melancon, the Louisiana trial court denied post-conviction
relief on December 9, 1997, and the application for supervisory
writs was not filed with the Louisiana Court of Appeal until May 8,
1998. Id. at 403. We observed that “[w]hile the trial court set
the return date as May 8, 1998, it did not extend the time for
filing the application.” Id. at 404 n.2. The opinion of the
Louisiana Court of Appeal in that case, State v. Melancon, No. 98-
K-1139 (La. Ct. App. 4th Cir. Aug. 13, 1998) (unpublished), a copy
of which is attached to the appellant’s brief in this court in
Melancon, states as follows:
“This writ appears to be untimely. The [trial]
court ruled on December 9, 1997. The only evidence of a
return date is the written notice of intent which was
signed by the trial court on what appears to be either
May 6th or May 8th, 1998. The return date was set for
May 8, 1998, the date this writ was filed in this Court.
Rule 4-3, Uniform Rules of the Courts of Appeal
5
requires that an original return date be not more than
thirty days from the date of the ruling at issue. Here,
the return date is approximately five months later.
There is no indication that an earlier return date was
set and then extensions were granted. Nonetheless,
because this Court ordered the evidentiary hearing in
response to defendant relator’s pro se writ, we will
consider the merits of the relator’s claim.”
We have reviewed the record and briefs in Melancon and there
is nothing to indicate or suggest that the prisoner there ever, or
ever during the thirty days next following the trial court’s
December 9, 1997, denial of relief, sought any extension or
enlargement of the thirty day period provided in Rule 4-3 or filed
any notice of intent to seek writs and/or any motion and order
requesting a return date. Thus, in Melancon when the thirty days
expired there was neither any order extending or fixing the return
date to or at a time later than the thirty day period nor was there
pending any undisposed of motion for any such relief, and no
supervisory writ application had been filed. Thus Melancon’s writ
application ceased to be pending at the expiration of the thirty
days. Here, by contrast, when the thirty days expired, the time
for filing the supervisory writ application had already been fixed
for a later date pursuant to Dixon’s previously filed motion for
such relief, and Dixon’s supervisory writ application was filed
prior to that thus fixed later date. Accordingly, Dixon’s
application for post-conviction relief remained “pending” at all
times from its initial filing until its final disposition by the
Louisiana Supreme Court; it was never in an untimely status.
6
Under the correct calculation, only 362 unsuspended days
passed between the date Dixon’s conviction became final and date he
filed his 28 U.S.C. § 2254 petition; thus, his petition was timely.
28 U.S.C. § 2244(d).
The judgment of the district court is VACATED and the case
REMANDED for further consideration of Dixon’s claims.
VACATED and REMANDED.
7