IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 3, 2009
No. 08-40161 Charles R. Fulbruge III
Clerk
Hudle Lee Hardy
Petitioner-Appellant
v.
Nathaniel Quarterman, Director, Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:
This is a federal habeas corpus appeal brought by petitioner-appellant,
Hudle Lee Hardy (Hardy), a Texas inmate, under 28 U.S.C. § 2254. Hardy filed
a petition for writ of habeas corpus on January 2, 2008 with the United States
District Court for the Eastern District of Texas. On January 29, 2008, the
district court denied Hardy’s petition as time-barred pursuant to section
2244(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Hardy timely filed a Notice of Appeal on February 7, 2008. For the
following reasons, we REVERSE and REMAND.
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I. FACTS AND PROCEEDINGS BELOW
Hardy, Texas prisoner # 1299916, was convicted of sexual assault in the
188th District Court of Gregg County, Texas. The jury, finding his enhancement
allegations true, imposed a mandatory life sentence pursuant to Texas Penal
Code § 12.42(c)(2)(B)(v). The intermediate court of appeals affirmed his
conviction on February 22, 2006. The Texas Court of Criminal Appeals (TCCA)
refused his petition for discretionary review on May 24, 2006. He did not file a
petition for certiorari to the United States Supreme Court; therefore, his
conviction became final on August 22, 2006.
Generally, a state prisoner must file a section 2254 habeas corpus petition
within one year of the date that his judgment “became final by the conclusion of
direct review or the expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). This limitations period is tolled, however, during the time in
which a properly filed application for state habeas relief or other collateral
review is pending. Id. § 2244(d)(2); see also Fields v. Johnson, 159 F.3d 914, 916
(5th Cir. 1998).
On October 18, 2006, Hardy filed a state habeas petition challenging his
conviction with the state convicting court. The state convicting court directed
the petition to the TCCA and recommended its denial. On January 10, 2007, the
TCCA denied Hardy’s habeas petition. Thus, the AEDPA statute of limitations
was tolled for eighty-four days while Hardy’s state writ application was pending,
making his federal petition for habeas corpus due on November 14, 2007. See
28 U.S.C. § 2244(d)(1)(A), (d)(2).
However, Hardy did not file his federal habeas petition until December 31,
2007, forty-seven days after the statute of limitations had run. That same day,
Hardy filed in the court below a motion for an extension of time for filing his
petition, arguing that the limitations period should be equitably tolled because
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he did not receive notice of his petition’s denial until December 24, 2007. Hardy
provided prison mail logs kept by the Correctional Institutions Division of the
Texas Department of Criminal Justice (TDCJ-CID) as evidence that he had
inquired about the status of his petition on at least three occasions. The prison
mail logs reflect that Hardy contacted the Gregg County District Court clerk on
September 17, 2007, and that he contacted the TCCA clerk on November 13,
2007 and on December 10, 2007. The mail logs also reflect that Hardy was first
notified of the denial of his state habeas application on December 24, 2007. The
government does not dispute the accuracy of the prison mail logs or that Hardy
was first notified on December 24, 2007.
The district court referred Hardy’s federal habeas petition to a magistrate
judge, who issued a report and recommendation that Hardy’s section 2254
petition be dismissed as untimely and that Hardy had not shown rare and
exceptional circumstances to warrant equitable tolling of the limitations period.
The magistrate judge determined that the limitations period should not be
equitably tolled because Hardy did not inquire about the status of his application
until the fall of 2007 and, therefore, he did not act diligently in pursuing habeas
relief.
Hardy did not dispute that his federal habeas petition was untimely under
the provisions of 28 U.S.C. § 2244(d). Instead, he filed objections to the
magistrate judge’s report, arguing that he was entitled to equitable tolling of the
limitations period for the following reasons: (1) the state failed to notify him of
his petition’s denial until December 24, 2007 (nearly a year after the TCCA’s
November 14, 2007 decision was rendered), (2) he made multiple inquiries to
ascertain the status of his case, and (3) he filed his section 2254 petition only
seven days after the TCCA finally did notify him of its decision. Unconvinced,
the district court adopted the magistrate judge’s report, dismissed Hardy’s
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petition as time-barred, and refused to issue a Certificate of Appealability
(COA).
Hardy filed a notice of appeal to this court. We granted a COA on the
issue of whether Hardy’s inquiries were sufficient to establish that he diligently
pursued habeas relief and was thus entitled to equitable tolling of the limitations
period.
II. DISCUSSION
A district court’s refusal to invoke equitable tolling is reviewed for abuse
of discretion. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). The one-year
federal limitations period is subject to equitable tolling only “in rare and
exceptional circumstances.” United States v. Patterson, 211 F.3d 927, 928 (5th
Cir.2000); Felder v. Johnson, 204 F.3d 168, 170–71 (5th Cir. 2000). “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.”
In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006). “‘[E]quity is not intended for
those who sleep on their rights.’” Id. (quoting Fisher v. Johnson, 174 F.3d 710,
715 (5th Cir. 1999)). The petitioner bears the burden of establishing that
equitable tolling is warranted. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.),
modified on reh’g, 223 F.3d 797 (5th Cir. 2000).
The TCCA is (and was at all times material hereto) legally obligated to
notify a petitioner once a decision has been rendered on his habeas petition. See
T EX. R. A PP. P. 77.4(a). Long delays in receiving notice of state court action may
warrant equitable tolling. See Phillips, 216 F.3d at 511. To warrant tolling
under such circumstances, a petitioner must show that he “pursued the [habeas
corpus relief] process with diligence and alacrity” both before and after receiving
notification. Phillips, 216 F.3d at 511 (requiring that a petitioner show diligence
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upon notification); see Lewis v. Cockrell, 275 F.3d 46, 2001 WL 1267701 (5th Cir.
Oct. 15, 2001) (explaining that a court should consider whether a petitioner
acted diligently both before and after receiving notification).
The respondent does not dispute that Hardy, a confined prisoner, was first
notified of the TCCA’s denial on December 24, 2007, nearly a year after the
TCCA rendered its decision; thus, it is uncontested that Hardy suffered a
substantial state-created delay. The respondent asserts, however, that Hardy
did not diligently pursue habeas relief (and is thus not entitled to equitable
tolling) because he did not inquire about the status of his petition until the fall
of 2007.
This court has previously addressed the timeliness of a petitioner’s inquiry
in two unpublished cases, Lewis v. Cockrell and Coker v. Quarterman, 270 Fed.
App’x 305, 310 (5th Cir. Mar. 17, 2008). In Lewis, a petitioner waited nearly two
and a half years to inquire as to the status of his state habeas application. 2001
WL 1267701 at *3. Due to this extreme delay, we held that the petitioner failed
to diligently pursue his rights and was not entitled to equitable tolling. Id. In
contrast, we considered the petitioner in Coker to have acted diligently when he
waited only eight months to inquire as to the status of his case, and, after having
heard nothing, sent a second inquiry a year later. 270 Fed. App’x at 310.
Hardy waited less than a year after filing his petition to inquire about the
status of his case—as evidenced by the entry in the prison mail logs indicating
that Hardy contacted the state convicting court’s clerk on September 17, 2007.
This eleven-month wait is much more analogous to the eight months the
petitioner in Coker allowed to elapse than the two and a half-year wait in Lewis.
Further, the timing of Hardy’s inquiry is not significantly different from time
periods found to be reasonable by other circuits. See e.g., Diaz v. Kelly, 515 F.3d
149, 155 (2d Cir. 2008), cert. denied, 129 S.Ct. 168 (2008), (finding that a
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petitioner’s nine-month wait to inquire established diligence); Miller v. Collins,
305 F.3d 491, 495–96 (6th Cir. 2002) (same). Thus, we conclude that Hardy’s
inquiry was timely, given his prisoner and pro se status and the fact that the
TCCA had the legal duty to notify him. Respondent has not suggested – and
nothing in the record suggests – that the TCCA’s failure to promptly notify
Hardy was in any way or to any extent attributable to fault or omission on
Hardy’s part.
The respondent argues, however, that Hardy was not diligent in contacting
the TCCA directly. We find this argument unconvincing. Hardy’s state habeas
petition was originally filed with the state convicting court, consistent with the
Texas Rules of Appellate Procedure. See T EX. R. A PP. P. 73.2. Though the state
convicting court does not have jurisdiction to decide Hardy’s state habeas
petition, it is reasonable to assume that the court where his petition was
properly filed would be notified of the TCCA’s ultimate decision. See T EX. R.
A PP. P. 77.4(c) (TCCA to notify trial court of order). Accordingly, Hardy acted
reasonably in initially contacting the state convicting court.
Further, Hardy directly contacted the TCCA on November 13, 2007, less
than two months after the state convicting court failed to respond to his initial
inquiry. And, after receiving no response, Hardy again contacted the TCCA on
December 10, 2007. Finally, on December 24, 2007, the TCCA notified Hardy
that his state habeas petition had been denied on January 10, 2007. Hardy filed
his federal habeas petition only seven days later, on December 31, 2007. The
government does not dispute that Hardy’s inquiries to the state convicting court
and the TCCA pertained to the status of his state habeas petition, it does not
dispute the accuracy of the prison mail logs, and it does not allege that Hardy
was notified prior to December 24, 2007.
Therefore, we find that Hardy diligently pursued federal habeas relief.
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Hardy suffered a significant state-created delay when the TCCA failed in its
legal duty to inform him that his petition had been denied. He timely inquired
to the state convicting court, and after receiving no response, persistently
inquired to the TCCA. Finally, Hardy filed his federal habeas petition only
seven days after obtaining notice that the TCCA denied his petition. Given
these facts, Hardy acted diligently and is entitled to equitable tolling of the
statute of limitations.
III. CONCLUSION
This court finds that Hardy’s inquiries were not too late to evidence
Hardy’s diligence in pursuing his rights. Thus, Hardy is entitled to equitable
tolling of the limitations period, and the district court’s decision is REVERSED
and REMANDED for further proceedings not inconsistent herewith.
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