IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 12, 2008
No. 06-30803 Charles R. Fulbruge III
Clerk
MICHAEL WARDLAW
Petitioner - Appellant
v.
BURL CAIN, Warden, Louisiana State
Penitentiary
Respondent - Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
Before GARZA and DENNIS, Circuit Judges, and MILLS,* District Judge.
PER CURIAM:
Appellant Michael Wardlaw, Louisiana State prisoner # 190808, appeals
from the district court’s order dismissing his petition for a writ of habeas corpus
as untimely under the one-year statute of limitations set forth in the
Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254 (“AEDPA”).
Although Wardlaw raises several arguments in his brief, including an argument
that the limitations period should be equitably tolled, we granted a certificate
of appealability (“COA”) on only one issue: whether Wardlaw’s state petition for
postconviction relief was “properly filed” such that it tolled the limitations period
*
Chief Judge of the Northern District of Mississippi, sitting by designation.
No. 06-30803
as provided in 28 U.S.C. § 2244(d)(2). In granting a COA, we directed the
parties to “address the continued applicability of Smith v. Ward, 209 F.3d 383,
384-85 (5th Cir. 2000), in light of Pace v. DiGuglielmo, 544 U.S. 408, 414-18, 125
S.Ct. 1807 (2005).” The parties did, and we conclude that Pace abrogated Ward.
Applying Pace, we hold that Wardlaw’s § 2254 petition is untimely.
I
In August 1995, a Louisiana jury convicted Wardlaw of second degree
murder for killing his mother. In connection with that offense, Wardlaw also
pleaded guilty to extortion. The court imposed consecutive sentences: fifteen
years at hard labor for extortion and life at hard labor without benefit of parole
for murder. In June 1997, Wardlaw's conviction was affirmed by the Louisiana
Court of Appeal, State v. Wardlaw, 709 So. 2d 1084 (La. Ct. App. 1997).
Wardlaw did not petition for a writ. In November 2002, Wardlaw did file a
motion for postconviction relief with the state trial court, alleging, inter alia,
that he had obtained newly-discovered exculpatory evidence which prosecutors
had failed to disclose to him, in contravention of Brady v. Maryland, 373 U.S. 83
(1960). The trial court denied his motion as untimely in July 2003. Wardlaw
then petitioned for writs from the First Circuit Court of Appeals and the
Louisiana Supreme Court, which denied these writs in December 2003, and
March 2005, respectively. See State v. Wardlaw, 896 So. 2d 992 (La. 2005).
In July 2005, Wardlaw filed the instant § 2254 petition in the U.S. District
Court for the Middle District of Louisiana, challenging only his murder
conviction. With respect to the timeliness of his § 2254 petition, Wardlaw
argued, inter alia, 1) that his habeas petition was timely filed under Ward
because he filed it within one year of the date on which the Louisiana Supreme
Court denied a writ and 2) that AEDPA’s one-year limitations period was
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No. 06-30803
equitably tolled based upon Brady violations which concealed exculpatory
evidence from him.
The district court adopted the report and recommendation of the
magistrate judge rejecting both of Wardlaw’s timeliness arguments. As to the
first argument, the district court, while not specifically mentioning Ward, held
that the Supreme Court’s subsequent decision in Pace was controlling instead.
Specifically, the court held:
[W]hat Wardlaw fails to recognize is that the time period for filing
a habeas petition under 28 U.S.C. §2244(d) is only tolled by a
“properly filed” application for postconviction relief, and when a
postconviction application has been rejected by a state court as
untimely-filed under state law, the application is not considered
“properly filed” for purposes of §2244(d).
The district court observed that the Louisiana state trial and appellate courts
had each rejected Wardlaw’s postconviction petition as untimely. The district
court concluded that because Wardlaw’s state postconviction petition was
untimely, his federal habeas petition was likewise untimely under Pace.1
II
The sole issue in this case is whether the district court correctly concluded
that Wardlaw’s state postconviction petition was not “properly filed” within the
meaning of 28 U.S.C. §2244(d) and therefore that AEDPA’s one-year limitations
period was not tolled in this case. In Ward, we held that a state habeas petition
may be "properly filed," even if eventually dismissed in state court as untimely,
when the state statute governing timeliness contains certain exceptions which
require some level of judicial review. Relying upon our analysis of a similar
1
As to the second argument raised by Wardlaw, the district court concluded that
the doctrine of equitable tolling did not apply based on newly discovered evidence, but
this issue is not before us.
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No. 06-30803
Texas statute in Villegas v. Johnson, 184 F.3d 467 (5th Cir. 1999), we found in
Ward that the Louisiana statute at issue did provide for such judicial review of
timeliness:
Under article 930.8A, Louisiana courts will accept a prisoner's
application for filing and review it to determine whether any of the
statutory exceptions to untimely filing are applicable. If the
untimely application does not fit within an exception, the state court
will dismiss it. . . . Because the procedure established by article
930.8A is virtually identical to that under TEX. CODE CRIM. P. art.
11.07, § 4, we conclude that, consistent with Villegas, Smith's state
application, although ultimately determined by the state court to be
time-barred, nevertheless was “properly filed” within the meaning
of § 2244(d)(2).
Ward, 209 F.3d at 385. In this case, the Louisiana trial and appellate courts
applied the same statute - LA. CODE CRIM. P. ANN. art. 930.8(A) - at issue in
Ward in concluding that Wardlaw had failed to timely file his postconviction
petition. Accordingly, Ward is directly on point in this case. The question,
however, is whether Ward remains good law.
In reaching its decision, the district court implicitly found that Pace
superseded Ward. The district court did not err in this regard. Even before
Pace, Carey v. Saffold, 536 U.S. 214, 224-26 (2002), suggested that Ward did not
interpret §2244(d)(2) correctly. The issue in Saffold was whether a petition for
collateral relief filed in the Supreme Court of California was "properly filed"
under California’s system of collateral review. Id. Although the Supreme Court
remanded Saffold for additional findings, it observed that “[i]f the California
Supreme Court had clearly ruled that Saffold's 4 1/2-month delay was
‘unreasonable,’” thus indicating that the petition was untimely under state law,
then “that would be the end of the matter, regardless of whether it also
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No. 06-30803
addressed the merits of the claim, or whether its timeliness ruling was
‘entangled’ with the merits.” Id.
The Supreme Court in Saffold thus suggested that an application for
collateral review in state court must satisfy the state's timeliness requirements
to be "properly filed" under § 2244(d)(2). Indeed, at least one federal appellate
court interpreted Saffold as indicating that various decisions from its sister
circuits, including our decision in Ward, had been “wrongly decided” to the
“extent they hold that petitions untimely under state rules nonetheless may be
deemed ‘properly filed.’” Brooks v. Walls, 301 F.3d 839, 841 (7th Cir. 2002) (citing
Ward, 209 F.3d at 383; Nara v. Frank, 264 F.3d 310 (3d Cir. 2001); Emerson v.
Johnson, 243 F.3d 931 (5th Cir. 2001); Dictado v. Ducharme, 244 F.3d 724 (9th
Cir. 2001)). The aforementioned language in Saffold, however, was not the
Court’s holding.
It was only later that the Supreme Court held that “[w]hat we intimated
in Saffold we now hold: When a postconviction petition is untimely under state
law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2).” Pace, 544 U.S.
at 414. In Pace, the Supreme Court expanded upon a distinction which it
previously had made in Artuz v. Bennett, 531 U.S. 4 (2000), between
postconviction petitions rejected on the basis of "filing conditions," which are
deemed to be not "properly filed" under § 2244(d)(2), and petitions rejected on
the basis of "procedural bars [that] go to the ability to obtain relief," which are
deemed to be "properly filed." Id. at 417 (citing Artuz, 531 U.S. at 10-11). The
Supreme Court in Pace held that “time limits, no matter their form, are 'filing'
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No. 06-30803
conditions," and that a state postconviction petition is therefore not "properly
filed" if it was rejected by the state court as untimely.2 Id.
The Pennsylvania statute of limitations at issue in Pace, like the Louisiana
statute here, contained certain exceptions whereby a late postconviction filing
might be excused, including an exception for cases where “new facts arise that
could not have been discovered through due diligence.” Id. at 411, n. 1, citing 42
PA. CONS. STAT. §§ 9545(b)(1)(i)-(iii). This exception is similar to the provision
in Art. 930.8(A)(1) for late filings where “[t]he application alleges, and the
petitioner proves or the state admits, that the facts upon which the claim is
predicated were not known to the petitioner or his attorney.” Wardlaw relies
upon this exception here, and both the Pennsylvania and Louisiana statutes
seem to require courts to “accept a prisoner's application for filing and review it
to determine whether any of the statutory exceptions to untimely filing are
applicable” within the meaning of Ward. Id. at 384. That the Supreme Court
in Pace nevertheless found a state postconviction petition not to be "properly
filed" if rejected by a state court as untimely leaves little, if any, basis for
distinguishing Ward from Pace. We therefore acknowledge that Ward was
2
The Supreme Court in Pace apparently sought to alleviate the harshness of its
holding by noting the availability of two protections to PCR petitioners concerned
about whether their state court filings would be deemed timely. First, the Supreme
Court suggested that petitioners could “fil[e] a ‘protective’ petition in federal court and
ask[] the federal court to stay and abey the federal habeas proceedings until state
remedies are exhausted.” Pace, 544 U.S. at 416. Second, the Supreme Court in Pace
“assumed without deciding” that petitioners could argue in favor of equitable tolling
for the time during which an untimely PCR petition was pending in state court. Id.
at 418, n. 8. These protections are unavailing for Wardlaw because he failed to file a
“protective” petition for habeas relief and because the district court specifically rejected
his argument that equitable tolling applied in this case.
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No. 06-30803
abrogated by Pace, and the district court correctly relied upon Pace as controlling
in this case.
Wardlaw does not dispute that Pace abrogated Ward, but he argues that
Pace cannot be applied retroactively to this case. In reality, Pace was decided
on April 27, 2005, and Wardlaw filed his § 2254 petition on July 8, 2005. Pace
was thus controlling when Wardlaw filed for federal habeas relief. Moreover, the
Supreme Court had given strong indications in Artuz and Saffold that Pace’s
interpretation of § 2244(d)(2) was correct, and the Seventh Circuit interpreted
Saffold as abrogating Ward in its August 2002 decision in Brooks. Therefore,
the continued applicability of Ward was doubtful even when Wardlaw filed his
state court petition for postconviction relief in November 2002. Wardlaw’s
retroactivity arguments therefore lack merit.
Likewise without merit is Wardlaw’s argument that Pace does not apply
to his Brady claims. Wardlaw is only able to cite Justice Stevens’ dissenting
opinion in Pace in support of this proposition, but the Pace majority gave no
indication that its holding was so limited. Indeed, federal courts have not
hesitated to apply Pace to Brady claims found to be untimely under state law,
see e.g. Rinaldi v. Gillis, 248 Fed. Appx. 371, 379 (3d Cir. Sept. 19, 2007);
Parmley v. Norris, No. 06-6059, 2007 WL 1381620 at *3 (W.D. Ark. May 9, 2007);
Jones v. Ortiz, No. 05-5088, 2007 WL 700878 at *9 (D. N.J. Feb. 28, 2007). Of
course, the same facts supporting a Brady claim might also support the
application of the doctrine of equitable tolling. See, e.g. Coleman v. Johnson, 184
F.3d 398, 402 (5th Cir. 1999) (observing that equitable tolling “applies
principally where the plaintiff is actively misled by the defendant about the
cause of action or is prevented in some extraordinary way from asserting his
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No. 06-30803
rights.”) To reiterate, however, the district court held that equitable tolling did
not apply under the facts here, and we did not grant a COA on this issue.
In light of our conclusion that the statute of limitations was not tolled
pursuant to § 2244(d)(2), we need not consider Wardlaw’s argument that
AEDPA’s limitations period did not begin to run until 2002, when Wardlaw
asserts that he discovered the facts upon which he bases his Brady claims. The
district court found that the statute began running when Wardlaw’s conviction
became final in July 1997, but, even assuming that Wardlaw’s position is correct,
his July 2005 federal habeas petition still would not be timely, barring tolling
under § 2244(d)(2).
Wardlaw has also filed a motion requesting the appointment of counsel.
No constitutional right to counsel exists in habeas corpus actions. Pennsylvania
v. Finley, 481 U.S. 551, 555 (1987). A habeas petitioner should be appointed
counsel when “the interests of justice so require.” Schwander v. Blackburn, 750
F.2d 494, 502 (5th Cir. 1985). The issue before the court is not particularly
complex, and Wardlaw has briefed it adequately. We therefore deny his motion.
In light of the foregoing, we agree with the district court that Wardlaw’s
state postconviction petition was not “properly filed” for purposes of §2244(d)(2).
We therefore AFFIRM the district court’s order dismissing Wardlaw’s § 2254
petition as untimely.
AFFIRMED.
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