United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 30, 2007
Charles R. Fulbruge III
Clerk
No. 05-40878
Summary Calendar
RAY DALE HOOKS,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 2:04-CV-389
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ray Dale Hooks, Texas prisoner # 909360, appeals from the
dismissal of his 28 U.S.C. § 2254 habeas corpus application as
time-barred, pursuant to 28 U.S.C. § 2244(d). Hooks challenges his
conviction of involuntary manslaughter and leaving the scene of an
accident. He moves to supplement the record with materials that
appear to have been omitted from the record; his motion to
supplement is granted.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40878
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At issue on appeal is the effect of Hooks’s motion for
rehearing or reconsideration after the Texas Court of Criminal
Appeals denied his state habeas corpus application. If that motion
tolled the limitations period, then Hooks’s § 2254 application was
timely filed. If the motion did not toll the limitations period,
then the § 2254 application was untimely.
The federal limitations period is tolled for “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[.]” § 2244(d)(2). Texas law provides that “A
motion for rehearing an order that denied habeas corpus relief . .
. may not be filed.” TEX. R. APP. P. 79.2(d) (West 2003). However,
the Court of Criminal Appeals “has entertained motions for
reconsideration, notwithstanding the language in . . . Rule
79.2(d).” Emerson v. Johnson, 243 F.3d 931, 934 (5th Cir. 2001).
When a motion for rehearing is properly filed within the § 2244(d)
limitations period, that period is tolled from the date of the
habeas denial, as if the motion for rehearing is a further step in
the state habeas process. Lookingbill v. Cockrell, 293 F.3d 256,
261 (5th Cir. 2002); Emerson, 243 F.3d at 935; see Melancon v.
Kaylo, 259 F.3d 401, 406-07 (5th Cir. 2001) (the intervals between
disposition of state habeas application and timely filing of an
application for review at the next level are not counted); Gordon
v. Dretke, 107 F. App’x 404, 406 (5th Cir. 2004) (noting that a
motion to reconsider denial of state habeas application was filed
No. 05-40878
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after the expiration of the § 2244(d) limitations period;
distinguishing case from Emerson and Lookingbill). The limitations
period is tolled “only as long as the Texas courts take to resolve
the motion or suggestion for reconsideration.” Emerson, 243 F.3d
at 935.
A Texas motion for reconsideration is considered filed for
tolling purposes when it is delivered to the Court of Criminal
Appeals and noted on that court’s docket sheet. See id. at 932.
Hooks’s motion was received and noted on the docket sheet on
October 1, 2004; the motion therefore was filed.
Contrary to the respondent’s assertion, our caselaw does not
require that the Court of Criminal Appeals actually address a
prisoner’s motion for rehearing or reconsideration for it to be
considered as properly filed pursuant to § 2244(d)(2) to toll the
limitations period. The Court of Criminal Appeals evidently did
address the motions in both Emerson and Lookingbill. See
Lookingbill, 293 F.3d at 259; Emerson, 243 F.3d at 932. In
Emerson, however, we noted that some prisoners might bypass moving
for rehearing or reconsideration in state court if they were unable
to predict whether the Court of Criminal Appeals would apply Rule
79.2(d) literally or would follow caselaw allowing that court to
consider motions for rehearing or reconsideration. Emerson, 243
F.3d at 935. We reasoned that it would discourage exhaustion of
state-court remedies were this court to not toll the limitations
period for a motion for rehearing or reconsideration. Id. Were we
No. 05-40878
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to require that a motion for rehearing actually be considered by
the Court of Criminal Appeals for that motion to toll the
limitations period, we would create exactly the situation we sought
to avoid in Emerson. Hooks’s motion for reconsideration or
rehearing therefore tolled the limitations period, and his § 2254
application was timely filed. We express no opinion on the merits
of Hooks’s underlying habeas corpus claims.
VACATED AND REMANDED; MOTION TO SUPPLEMENT GRANTED.