United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit April 13, 2007
Charles R. Fulbruge III
Clerk
No. 06-41715
In Re: DAVID LEE LEWIS
Movant
On Motion for Authorization to File Successive Petition for Writ
of Habeas Corpus in the United States District Court Before the
Eastern District of Texas, Tyler
Before JONES, Chief Judge, and DAVIS and DEMOSS, Circuit Judges.
PER CURIAM:
Texas death row inmate David Lee Lewis (“Lewis”) has applied
for our authorization to file a successive application for a writ
of habeas corpus in the district court. He seeks to challenge his
death sentence pursuant to the Supreme Court’s decision in Atkins
v. Virginia,1 which prohibits execution of mentally retarded
criminals. We deny Lewis’s 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.
The following is a summary of the significant dates:
In 1997, Lewis filed an application for state habeas relief,
1
536 U.S. 304 (2002).
which the Texas Court of Criminal Appeals denied in 1999. He then
filed a second state habeas application in 1999, which the court
dismissed as an abuse of the writ.
In March 2000, Lewis filed a petition for federal habeas
relief. The district court granted the State’s motion for summary
judgment and dismissed his petition. Lewis then sought a
Certificate of Appealability (“COA”) on four issues, and COA was
granted on two issues.
On June 20, 2002, while Lewis’s appeal to this court was
pending, the Supreme Court decided Atkins.
On July 16, 2002, this court affirmed the district court’s
denial of habeas relief. Lewis then filed a petition for a writ of
certiorari, which the Supreme Court denied on March 3, 2003.
On March 10, 2003, Lewis was notified that his attorney
appointed to represent him in his initial federal habeas
proceedings intended to do no further work on his case.
On June 20, 2003,2 Lewis filed a successive state habeas
application, raising his claim under Atkins.
On December 6, 2006, the Texas Court of Criminal Appeals
denied relief.
On December 7, 2006, Lewis mailed his motion for authorization
2
The State maintains that Lewis filed his successive state habeas
application on June 26, 2003. Lewis admits that his counsel wrote in his
motion to this court that his application was filed on June 26, 2003. However,
in his reply brief, Lewis states that the application was actually filed on
June 20, 2003, and that it was a corrected application that was filed on June
26, 2003. Lewis attaches the first page of his successive state habeas
petition, which is stamped as filed on June 20, 2003, to his reply.
2
to file a successive federal habeas petition.
On December 8, 2006, Lewis’s motion was filed with this court.
I. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act (the
“AEDPA”) provides a one-year limitations period for habeas
applications.3 In cases like Lewis’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.”4 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, 2003.5
On that date, the very last day of his AEDPA limitations
period, Lewis filed his successive application for habeas corpus in
Texas state court. Because the time during which a properly filed
application is pending in state court is not counted toward the
federal limitations period,6 Lewis’s time for filing in federal
court - with one day remaining - was tolled for as long as his
3
28 U.S.C. § 2244(d)(1). We have previously rejected Lewis’s contention
that we do not have the statutory authority to determine whether the
limitations period bars consideration of his successive habeas petition. See
In re Elizalde, No. 06-20072 (5th Cir. Jan. 31, 2006); In re Wilson, 442 F.3d
872 (5th Cir. 2006); see also, In re Hill, 437 F.3d 1080 (11th Cir. 2006)
(denying application for authorization to file a successive federal habeas
petition raising an Atkins claim because such application was untimely).
4
28 U.S.C. § 2244(d)(1)(C).
5
See In re Hearn, 376 F.3d 447, 456 n.11 (5th Cir. 2004) (“Hearn I”).
6
28 U.S.C. § 2244(d)(2).
3
state application was pending in the Texas courts.
On December 6, 2006, the Texas Court of Criminal Appeals
issued a final judgment denying Lewis’s state application. This
left Lewis with one business day to file his application in federal
court. Thus, Lewis’s filing deadline was December 7, 2006.
Although Lewis mailed his motion for authorization to file a
successive federal habeas petition on December 7, 2006, generally
mailing is not the equivalent of filing, and an application is not
considered filed until it is placed in the possession of the clerk
of court.7 Thus, Lewis’s application was not filed until December
8, 2006. As a result, Lewis’s application is 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.8
II. Equitable Tolling
The doctrine of equitable tolling is applied very
restrictively, and is entertained only in cases presenting “rare
and exceptional circumstances where it is necessary to preserve a
7
See Fed. R. Civ. P. 5(e) (“[t]he filing of papers with the court as
required by these rules shall be made by filing them with the clerk of
court”); McClellon v. Lone Star Gas Co., 66 F.3d 98, 101 (5th Cir. 1995) (“a
pleading is considered filed when placed in the possession of the clerk of the
court”).
8
We disagree with Lewis’s assertion that the issue of equitable tolling
must be resolved in the first instance by the district court. Although,
“under the circumstances” of In re Henderson, 462 F.3d 413, 416 (5th Cir.
2006), we left the equitable tolling issue to the district court, in other
cases we addressed the issue and find no reason not to do so here. See In re
Elizalde, No. 06-20072 (5th Cir. Jan. 31, 2006); In re Wilson, 442 F.3d 872.
4
plaintiff’s claims when strict application of the statute of
limitations would be inequitable.”9 “A petitioner’s failure to
satisfy the statute of limitations must result from external
factors beyond his control; delays of the petitioner’s own making
do not qualify.”10
Lewis argues that equitable tolling applies because (1) his
court-appointed federal habeas counsel withdrew on the very day he
became eligible to raise his Atkins claim; (2) his subsequent pro
bono counsel had minimal time and resources to prepare his claim;
and (3) the Texas “two-forum rule” prevented him from timely filing
in federal court. We disagree.
“[F]or equitable tolling to apply, the applicant must
diligently pursue . . . relief.”11 Lewis obtained his pro bono
counsel on or soon after the day he received notice of his previous
counsel’s withdrawal, which was March 10, 2003, leaving Lewis with
over three months to file his state application. Under the
circumstances of this case, three months was adequate time for
Lewis to file his application. Although the question of Lewis’s
mental retardation was not directly litigated at trial, Lewis’s
mental capacity has been at issue since his first trial in 1987.
As a result, evidence related to Lewis’s Atkins claim was in the
9
In re Wilson, 442 F.3d at 875.
10
Id. (citation omitted).
11
Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999).
5
trial record itself and readily available to his pro bono counsel.12
As we have previously stated, “mere attorney error or neglect is
not an extraordinary circumstance such that equitable tolling is
justified.”13
Lewis also contends 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 2004,
a Texas rule prevented habeas petitioners from maintaining both
state and federal applications at the same time.14 Often referred
to as the “two-forum rule,” it forced a petitioner to “decide which
forum he [would] proceed in, because [the state court would not]
consider a petitioner’s application so long as the federal courts
retain[ed] jurisdiction over the same matter.”15 Lewis argues 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 application seeking to raise an Atkins
12
For example, there was psychological expert testimony regarding
Lewis’s low I.Q., and testimony from family members about his attendance in
special education.
13
United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002) (citation
and quotations omitted).
14
In re Wilson, 442 F.3d at 874.
15
Id. (citing Ex parte Green, 548 S.W.2d 914, 916 (Tex. Crim. App. 1977)
(quoted in Hearn I, 376 F.3d at 456)).
6
challenge,16 it does not explain Lewis’s waiting until the very last
day of the limitations period to file his successive application in
federal court. Contrary to Lewis’s contention, the instant case is
materially distinguishable from In re Hearn (“Hearn I”)17 and In re
Wilson18 in which we acknowledged that the Texas two-forum rule may
justify equitable tolling. In both Hearn I and In re Wilson, when
the one-year limitations period expired, the petitioners’ initial
federal habeas proceeding was still pending in this court, which
prevented the petitioners from timely filing their subsequent state
habeas petition to exhaust their Atkins claim.19 However, we
resolved Lewis’s initial federal habeas petition on July 16, 2002
and the Supreme Court denied certiorari on March 3, 2003, over
16
Hearn I, 376 F.3d at 457; In re Wilson, 442 F.3d at 878.
17
In Hearn I, a panel of this court considered an untimely successive
habeas application brought by a prisoner who was not represented by counsel.
Although the Hearn I 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. Hearn I, 376 F.3d at 457. Upon a motion for rehearing following Hearn
I, we denied rehearing and clarified our opinion. See In re Hearn, 389 F.3d
122 (5th Cir. 2004) (“Hearn II”). Although we limited our opinion in Hearn II
to cases in which petitioner lacked counsel, we found that equitable tolling
did apply in that case “because of the combination of the problem created by
the Texas two-forum rule . . . and the withdrawal of petitioner’s counsel.”
Id. at 123.
18
In In re Wilson, we considered an untimely successive habeas
application and concluded that “[t]he Texas two-forum rule reasonably caused
[Wilson] to delay filing a state habeas [petition] leaving himself only one
day after the state court ruling to obtain authorization and file a federal
habeas petition.” In re Wilson, 442 F.3d at 878. We found that Wilson
demonstrated the sort of “rare and exceptional circumstances” that would
justify equitable tolling of the limitations period. Id. at 873.
19
Hearn I, 376 F.3d at 450 (we denied relief on June 23, 2003, the
Supreme Court denied certiorari on November 17, 2003); In re Wilson, 442 F.3d
at 876 n.4 (we denied relief on July 17, 2003).
7
three months before the one-year period expired. As a result,
Lewis did not face the same dilemma as did Wilson and Hearn because
the Texas rule did not prevent him from filing his Atkins claim in
state court within the one-year period. Although the Texas two-
forum rule temporarily postponed Lewis’s ability to file his Atkins
claim in state court, Lewis’s decision to delay his filing to the
very last minute cannot be said to have resulted from rare and
extraordinary circumstances. Accordingly, we find that Lewis has
not shown a sufficient basis for tolling the statute of
limitations.20
For the reasons stated, Lewis’s motion for authorization to
file a successive habeas corpus petition is DENIED because the
motion is time-barred. This resolution of the motion makes it
unnecessary for us to consider other issues raised by the motion.
DENIED.
20
We reject Lewis’s contention that, even if we find that the
circumstances of his case do not warrant equitable tolling, the limitations
period should not apply to the claim that a person is mentally retarded. We
have previously applied the limitations period to Atkins claims, including a
claim in which the petitioner had made a prima facie showing of mental
retardation. See In re Wilson, 442 F.3d 872.
8