United States Court of Appeals
Fifth Circuit
FILED
December 13, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41724
IN RE: MARVIN LEE WILSON,
Petitioner.
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Motion for Authorization to File Successive
Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254
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Before DAVIS, WIENER, and GARZA, Circuit Judges.
BY THE COURT:
Texas death row inmate Marvin Lee Wilson has applied for our
authorization to file a successive application for a writ of habeas
corpus in the United States District Court for the Eastern District
of Texas. He seeks to challenge his death sentence pursuant to the
Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304
(2002), prohibiting the execution of mentally retarded criminals.
This is Wilson’s second motion for authorization; we dismissed
without prejudice his first motion for failure to exhaust his
Atkins claim in state court. No. 03-40853 (Nov. 10, 2003).
Although that defect has since been cured by a final judgment of
the Texas Court of Criminal Appeals, we deny Wilson’s present
motion for authorization because it is time-barred and because he
has not demonstrated the sort of “rare and exceptional
circumstances” that would justify equitable tolling of the
limitations period.
I. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act (AEDPA)
provides a one-year limitations period for habeas applications. 28
U.S.C. § 2244(d)(1). In cases like Wilson’s, the year commences to
run from “the date on which the constitutional right asserted was
... newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” § 2244(d)(1)(C). The
Supreme Court issued Atkins on June 20, 2002; thus, the one-year
limitations period for filing a habeas application based on Atkins
expired on June 20, 2003. See In re Hearn, 376 F.3d 447, 456 n.11
(5th Cir. 2004).
On that date, the very last day of his AEDPA limitations
period, Wilson filed successive applications for habeas corpus in
both federal district court and Texas state court. We dismissed
without prejudice his federal application, as noted above, while
his state application went forward in the Texas courts. As the
time during which a properly filed application is pending in state
court is not counted toward the federal limitations period, 28
U.S.C. § 2244(d)(2), Wilson’s time for filing in federal court ——
with one day remaining —— was tolled for as long as his state
application was pending in the Texas courts.
On November 10, 2004, the Texas Court of Criminal Appeals
issued a final judgment denying Wilson’s state application. This
left Wilson with one business day to refile his application in
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federal court. As November 11 was a federal holiday, Wilson’s
filing deadline was November 12, 2004.
Wilson attempted to refile his successive application in the
district court on November 12, but without our prior authorization
as required under the AEDPA. 28 U.S.C. § 2244(b)(3)(A). Nearly a
month later, on December 10, Wilson submitted a motion to us for
reinstatement of the proceedings which we had dismissed without
prejudice. He did not file a new motion for authorization at that
time. We took no action on the motion for reinstatement, and on
December 15, the district court dismissed Wilson’s successive
application as unauthorized.
Not until December 22, 2004, a full forty days after his
filing deadline, did Wilson properly file his new motion for
authorization. His application is clearly barred by AEDPA’s
statute of limitations and must be denied, unless he has
demonstrated that he is entitled to equitable tolling of the
limitations period.
II. Equitable Tolling
The doctrine of equitable tolling is applied very
restrictively and, as we have held repeatedly, is entertained only
in cases presenting “rare and exceptional circumstances where it is
necessary to preserve a plaintiff’s claims when strict application
of the statute of limitations would be inequitable.” Fierro v.
Cockrell, 294 F.3d 674, 682 (5th Cir. 2002) (internal quotation and
alteration omitted). A petitioner’s failure to satisfy the statute
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of limitations must result from external factors beyond his
control; delays of the petitioner’s own making do not qualify. See
Felder v. Johnson, 204 F.3d 168, 174 (5th Cir. 2000) (“Equitable
tolling is appropriate when an extraordinary factor beyond the
plaintiff’s control prevents his filing on time.”)
A. Intentional Delay
Although the timing of Wilson’s application may have been
partially affected by factors beyond his control that might in some
cases justify equitable tolling, we are not convinced that his case
presents the sort of rare and exceptional circumstances we require
before applying this “narrowest of exceptions.” Fierro, 294 F.3d
at 684. The actions of his counsel —— particularly in waiting
until the very last day of the limitations period to file his
application —— appear to us to be more indicative of brinkmanship
than of careful diligence. “For equitable tolling to apply, the
applicant must diligently pursue ... relief.” Coleman v. Johnson,
184 F.3d 398, 403 (5th Cir. 1999). As it appears readily to us
that Wilson deliberately waited until the last possible moment to
file his application, and thereby took a risk that could have been
avoided, we decline to extend to him the benefit of equitable
tolling.
Wilson contends, however, that he was prevented from timely
filing in federal court by the Texas habeas corpus procedure that
was in effect during the year immediately following Atkins. Until
recently, a unique rule in the Texas courts prevented habeas
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petitioners from maintaining both state and federal applications at
the same time. Often referred to as the “two-forum rule,” it
forced a petitioner to “decide which forum he [would] proceed in,
because [the state courts would not] consider a petitioner’s
application so long as the federal courts retain[ed] jurisdiction
over the same matter.” Ex parte Green, 548 S.W.2d 914, 916 (Tex.
Crim. App. 1977) (quoted in In re Hearn, 376 F.3d 447, 456 (5th
Cir. 2004)); see also Ex parte Powers, 487 S.W.2d 101 (Tex. Crim.
App. 1972) (dismissing state writ when federal courts had not
dismissed parallel writ). Wilson insists that this Texas rule
precluded the filing of an Atkins claim during the pendency of his
initial federal habeas proceedings and that it justifies equitable
tolling for his successive application.
Although we have previously recognized the potential of the
two-forum rule to present a rare and exceptional circumstance for
a successive habeas applicant seeking to raise an Atkins challenge,
In re Hearn, 376 F.3d 447, 457 (5th Cir. 2004),1 it does not
explain Wilson’s waiting until the very last day of the limitations
period to file his successive application in federal court. Even
1
In Hearn, a panel of this court considered an untimely
successive habeas application brought by a prisoner who was not
represented by counsel. Although the Hearn panel did not squarely
hold that the applicant was entitled to equitable tolling, it did
grant his motion for appointment of counsel to investigate and
prepare a tolling claim based on Texas’s two-forum rule. 376 F.3d
at 457. To date we have not discussed possible ramifications of
the rule to prisoners like Wilson, who are represented by counsel
at all relevant times.
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if we assume arguendo that the rule did effectively force Wilson to
choose between his pending federal writ petition and his successive
Atkins claim, that dilemma presented itself just the same on the
first day of the limitations period as it did on the last: Wilson
did not in any way limit his risk of dismissal by waiting until
June 20, 2003, to file. Prudence —— and diligence —— would seem to
us to have required Wilson’s counsel to leave himself at least a
little room for error, rather than to delay his life-and-death
filing to the very last minute. However great an obstacle the two-
forum rule may have posed, Wilson’s decision to stand mute all the
way up to the statutory deadline cannot be said to have resulted
from rare and extraordinary circumstances.
B. Misled by Opponent
Wilson additionally argues that he is entitled to equitable
tolling because the State misled him and the court about the proper
procedure for preserving federal review of his Atkins claim. We
recognize that being actively misled by an opponent concerning the
timing for filing may entitle a party to equitable tolling. See
Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996).
Wilson has not, however, presented sufficient facts to support his
allegation.
Wilson calls our attention to the State’s September 16, 2003,
letter urging us to deny his motion for authorization as premature.
Specifically, he points to the statement that
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If this Court denies Wilson’s motion as premature and
without prejudice, Wilson could re-file his mental
retardation claim in this Court immediately after the
state court renders its decision as his statute of
limitations for filing in federal court is tolled while
his properly filed state application for writ of habeas
corpus remains pending in state court.
This is, of course, an accurate statement of the tolling rules.
The only portion of the quoted text that may be even remotely
misleading is the assertion that Wilson could re-file “in this
Court” after the state court ruling, rather than in the district
court. But surely Wilson’s counsel does not require his opponent’s
instruction on when and where to file. Moreover, he did not even
rely on this statement: When the state court’s ruling came down,
Wilson filed in the district court and not here. There might be a
different result if, for example, the State had promised in its
letter not to raise a limitations defense and then reneged on that
promise; but nothing of that sort happened here. Wilson has not
demonstrated that he was misled in any meaningful way by the State
concerning the appropriate procedure for filing his successive
habeas application such that he would be entitled to equitable
tolling on that basis.
III. Conclusion
We deny Wilson’s motion for authorization to file a successive
habeas application because he failed to satisfy the AEDPA statute
of limitations. However harsh the result may be —— particularly in
a death penalty case involving a petitioner who has made a prima
facie showing of mental retardation —— Congress acted deliberately
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in enacting a strict limitations period under the AEDPA, severely
restricting the filing of habeas claims in furtherance of its
policy to accelerate the process and curb abuse of the writ. See
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Out of
deference to Congress’s carefully-crafted habeas scheme, and
because Wilson has failed to demonstrate that rare and exceptional
circumstances prevented his timely filing, we decline to expand
the limitations period through the doctrine of equitable tolling.
For the foregoing reasons, the motion for authorization is
DENIED.
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