IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 1, 2009
No. 07-30728 Charles R. Fulbruge III
Clerk
CRAIG WILSON
Petitioner - Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-890
Before SMITH, GARZA, and CLEMENT, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Pursuant to our grant of a certificate of appealability (“COA”), prisoner
Craig Wilson appeals the district court’s denial of his 28 U.S.C. § 2254 petition
as untimely. Wilson contends that his conviction became final on the day that
the Louisiana Supreme Court (“LSC”) denied his motion for rehearing, which
would render his § 2254 petition timely. The district court dismissed Wilson’s
§ 2254 petition, finding that since LSC rules do not permit consideration of a
motion for rehearing where the LSC has merely granted or denied a writ, the
motion for rehearing did not affect the finality of Wilson’s conviction. For the
following reasons, we REVERSE and REMAND.
No. 07-30728
I
Wilson was convicted by a jury in 1998 of attempted murder and sentenced
to a 40-year term of imprisonment. The Louisiana appellate court affirmed
Wilson’s conviction by decision dated May 11, 2001. On September 13, 2002, the
LSC denied Wilson’s timely writ application by a 4-3 margin. Wilson filed a pro
se motion for rehearing on September 27, 2002. The LSC denied this motion on
June 27, 2003, although one of the LSC justices voted to grant reconsideration.
See State v. Wilson, 847 So. 2d 1258 (La. 2003). There is no indication in the
record that Wilson sought a writ of certiorari from the United States Supreme
Court.
On February 25, 2004, Wilson filed a state habeas application , which was
denied. The state appellate court subsequently denied Wilson’s writ application.
The LSC also denied Wilson’s writ application on December 16, 2005.
Wilson filed his § 2254 petition no earlier than the date he signed it,
January 30, 2006. In this petition he raised nine claims for relief, including
violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), ineffective
assistance of counsel, solicitation of perjured testimony, and prosecutorial
misconduct. The respondent answered the petition, arguing that Wilson’s § 2254
petition was untimely. The magistrate judge (“MJ”) ordered the respondent to
file a supplemental response addressing the merits of Wilson’s claims and any
other defenses the state wished to assert. The Respondent complied with this
order.
The MJ issued a report recommending that Wilson’s § 2254 petition be
dismissed as time barred. The MJ determined that Wilson’s conviction became
final on December 12, 2002, upon the expiration of the 90-day period for seeking
a writ of certiorari from the United States Supreme Court following the LSC’s
denial of Wilson’s writ application. Noting that the rules of the LSC do not
permit consideration of a motion for rehearing where the LSC has merely
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granted or denied a writ, the MJ determined that the motion for rehearing filed
with the LSC did not affect the finality of Wilson’s conviction. Accordingly, the
MJ found that the statute of limitations applicable to § 2254 petitions expired
on December 12, 2003, because Wilson had no properly filed requests for
post-conviction relief or other collateral review pending during the one-year
limitations period. Wilson’s request for rehearing, the MJ found, did not toll the
limitations period because it was not “properly filed,” and Wilson’s 2004 state
habeas application also had no tolling effect because the limitations period had
already expired. Finally, the MJ concluded that Wilson was not entitled to
equitable tolling.
Wilson timely objected to the MJ’s report, arguing that the MJ had erred
in determining that his § 2254 petition was time barred because his conviction
had not become final until the LSC denied his motion for rehearing. He also
argued that he was entitled to equitable tolling.
The district court adopted the MJ’s report and dismissed Wilson’s § 2254
petition. Wilson filed a timely COA motion, which the district court denied. We
granted a COA on the issue of whether Wilson’s § 2254 petition was timely filed,
but denied a COA on the issue of whether Wilson was entitled to equitable
tolling. Wilson v. Cain, No. 07-30728 (5th Cir. May 14, 2008) (unpublished).
II
Wilson contends that the district court erred in its determination that his
§ 2254 petition was untimely, arguing that the district court improperly found
that his motion for rehearing did not affect the finality of his conviction. Wilson
asserts that his conviction did not become final until his motion for rehearing
was denied by the LSC and that he was entitled to statutory tolling during the
pendency of state habeas proceedings, making his petition timely. We review
the district court’s findings of fact for clear error, and its legal conclusions de
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No. 07-30728
novo. Geiger v. Cain, 540 F.3d 303, 307 (5th Cir. 2008), petition for cert. filed
(Nov. 3, 2008) (No. 08-8679).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
petitioner must file his § 2254 petition within one year from the date that his
conviction became final by the conclusion of direct review or the expiration of the
time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A); Jimenez v.
Quarterman, 129 S.Ct. 681, 685-86 (2009) (explaining the rules for calculating
the one-year period under § 2244(d)(1)(A)). Pursuant to § 2244(d)(2), the period
during which a properly-filed application for state habeas corpus relief is
pending is not counted towards the one-year limitations period. See 28 U.S.C.
§ 2244(d)(2). A properly-filed state post-conviction application remains pending
for tolling purposes until its final resolution through the ordinary state collateral
review process. Dixon v. Cain, 316 F.3d 553, 554-55 (5th Cir. 2003); see also 28
U.S.C. § 2244(d)(2). A state post-conviction application is “properly filed” for
purposes of § 2244(d)(2) if it was submitted according to the state’s procedural
requirements. Villegas v. Johnson, 184 F.3d 467, 469, 470 & n.2 (5th Cir. 1999).
Procedural filing requirements are “those prerequisites that must be satisfied
before a state court will allow a petition to be filed and accorded some level of
judicial review.” Id. at 470 n.2.
A judgment by the Louisiana Supreme Court becomes final when the
14-day period for applying for a rehearing has expired and no application has
been made. See L A. C ODE C RIM. P ROC. art. 922(A) & (B); see also L A. S UP. C T. R.
IX, § 1 (granting 14 days from the mailing of the notice of judgment to file an
application for rehearing). However, Rule IX, § 6 of the Louisiana Supreme
Court Rules provides that an application for rehearing “will not be considered
when the court has merely granted or denied an application for a writ of
certiorari or a remedial or other supervisory writ . . . .” L A. S UP. C T. R. IX, § 6;
see also State v. James, 329 So. 2d 713, 717 (La. 1976) (Tate, J., concurring). As
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No. 07-30728
noted above, the MJ relied on Louisiana Supreme Court Rule IX, § 6 in
determining that the finality of Wilson’s conviction was not affected by Wilson’s
filing of a motion for rehearing following the LSC’s denial of his writ application.
However, Louisiana courts do not invariably apply Louisiana Supreme
Court Rule IX, § 6 to procedurally bar motions for rehearing where the LSC has
merely granted or denied a writ application. Wilson correctly cites several cases
where Louisiana courts have elected to grant rehearing despite this rule. In
State v. Vale, for example, the Louisiana appellate court affirmed the trial
court’s conviction and sentence. See State v. Vale, 650 So. 2d 379, 380 (La. App.
1995). The LSC subsequently denied the defendants’ writ application with a
one-word denial. See State v. Vale, 661 So. 2d 1358, 1358 (La. 1995). Despite
Rule IX, § 6, the LSC later granted the defendant’s request for reconsideration
and granted the writ application. See State v. Vale, 664 So. 2d 410, 410 (La.
1995). Similarly, in State ex rel. Glass v. State, 507 So. 2d 1245, 1245 (La. 1987),
the LSC initially denied the defendant’s application for a writ of habeas corpus
and for a supervisory writ with a one-word denial. Three days later, the LSC
granted the defendant’s request for reconsideration in spite of Rule IX, § 6, but
denied the writ application. See State ex rel. Glass v. State, 507 So. 2d 1246,
1246 (La. 2005). Again, in James v. Cain, 653 So. 2d 552, 552 (La. 1995), the
LSC initially issued a one-word denial of the writ application, but subsequently
granted the applicant’s request for reconsideration and ordered an evidentiary
hearing. See James v. Cain, 653 So. 2d 1179, 1179 (La. 1995). In the instant
case, Wilson’s request for rehearing was denied, but one justice indicated that
he would grant rehearing.
We have previously considered an analogous issue in Emerson v. Johnson,
243 F.3d 931 (5th Cir. 2001). In Emerson, we considered whether a Texas
prisoner’s “suggestion for reconsideration” was “properly filed” under §
2244(d)(2), and thus triggered statutory tolling of the limitations period, despite
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No. 07-30728
a Texas rule that provided: “‘No motions for rehearing or reconsideration will be
entertained from a denial of relief without docketing of the cause. The court,
however, may on its own motion, reconsider such initial disposition.’” Id. at 934
(quoting T EX. R. A PP. P ROC. § 213(b)). Although we observed that this rule
“seemingly provides no exceptions,” we determined that “the Texas Court of
Criminal Appeals has entertained motions for reconsideration, notwithstanding
the language in § 213(b).” Id. We ultimately concluded in Emerson that the
prisoner’s “suggestion for reconsideration” had been “properly filed” although the
language of § 213(b) might be read to prohibit such a filing. See id. at 935. This
conclusion, we observed, was in deference to Texas courts’ application of state
law, and also furthered the congressional rationale in passing AEDPA of
requiring habeas petitioners to exhaust their claims in state courts. Id.
The issue in Emerson was whether a motion for reconsideration served to
toll the one-year limitations period under the provisions of § 2244(d)(2). See id.
at 932. The instant case presents a somewhat different, but related question, as
it concerns whether a motion for rehearing affects the finality of a defendant’s
conviction and thus the commencement of the one-year limitations period.
However, this case and Emerson involve the common issue of whether a state
procedural rule that prohibits motions for rehearing and that seemingly permits
no exceptions should be applied in the context of the one-year AEDPA
limitations period where the decisions of state courts “have provided . . . the hope
that a motion or suggestion for reconsideration may be successful.” Id. at 935.
Following our precedent in Emerson, we conclude in this case that since the LSC
has entertained motions for rehearing notwithstanding the language in
Louisiana Supreme Court Rule IX, § 6, this rule does not prevent Wilson’s
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No. 07-30728
motion for rehearing from being considered in determining the date his
conviction became final.1
As noted above, under § 2244(d)(1)(A), a state judgment becomes final “by
the conclusion of direct review or the expiration of the time for seeking such
review.” Where, as here, the appellant does not seek a writ of certiorari from the
United States Supreme Court, “finality [is] established by the expiration of the
ninety-day period to seek further review with the Supreme Court.” Roberts v.
Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). Under the rules of the United States
Supreme Court in effect at the time the LSC denied Wilson’s motion for
rehearing, the 90-day period for filing a certiorari petition was affected by a
“timely filed” petition for rehearing. See S UP. C T. R. 13; Dep’t of Banking, State
of Nebraska v. Pink, 317 U.S. 264, 266 (1942) (“A timely petition for rehearing
tolls the running of the three-months period because it operates to suspend the
finality of the state court’s judgment, pending the court’s further determination
whether the judgment should be modified so as to alter its adjudication of the
rights of the parties.”). The rule provides:
[I]f a petition for rehearing is timely filed in the lower court by any
party, or if the lower court appropriately entertains an untimely
petition for rehearing or sua sponte considers rehearing, the time to
file the petition for a writ of certiorari for all parties (whether or not
they requested rehearing or joined in the petition for rehearing)
runs from the date of the denial of rehearing or, if rehearing is
granted, the subsequent entry of judgment.
S UP. C T. R. 13(3).
1
Respondent argues that our decision in Butler v. Cain, 533 F.3d 314 (5th Cir. 2008),
requires the conclusion that Wilson’s motion for rehearing should not affect the date his
conviction became final. We disagree. In Butler, we determined that an untimely writ
application filed with the LSC did not affect the date on which a conviction became final. See
Butler, 533 F.3d at 317. Here, we are confronted with the different question of whether a
timely-filed motion for rehearing affects the date of final conviction. Accordingly, so long as
Wilson’s application for rehearing was filed within the required time frame, the issue we
resolved in Butler has no application here.
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No. 07-30728
The record indicates that Wilson’s motion for rehearing was filed within
the 14-day period permitted under Louisiana law for filing such a motion. See
L A. S UP. C T. R. IX, § 1 (stating that an “application for rehearing must be filed
with the clerk on or before the fourteenth calendar day after the mailing of the
notice of judgment”). Wilson’s motion for rehearing contained a certificate of
service indicating that he served the motion on the respondent by mailing it on
September 27, 2002. His motion would be considered filed on the date that he
deposited the motion in the prison mail system for mailing to the LSC. See
Causey v. Cain, 450 F.3d 601, 603-07 (5th Cir. 2006) (applying “mailbox rule” to
state court filings of Louisiana prisoner in determining timeliness of federal
habeas petition). It thus appears that Wilson’s motion for a rehearing was
timely filed following the LSC’s Sept. 13, 2002, denial of his writ application.
Accordingly, the motion for rehearing must be considered in determining the
finality of Wilson’s conviction.
Therefore, we find that Wilson’s conviction became final on or about
September 25, 2003, 90 days after the June 27, 2003, denial of the motion for
rehearing. See S UP. C T. R. 13; Roberts, 319 F.3d at 694. Since Wilson’s
conviction became final in September 2003, his § 2254 petition, filed on January
30, 2006, is not untimely given that Wilson is entitled to tolling during the
pendency of his state habeas proceedings, which commenced on February 25,
2004, and concluded on December 16, 2005. See 28 U.S.C. § 2244(d)(2).
III
For the foregoing reasons, we REVERSE the judgment of the district court
and REMAND for further proceedings consistent with this opinion.
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