IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2009
No. 07-50208 Charles R. Fulbruge III
Clerk
Philip Robert Critchley Jr.
Petitioner-Appellant
v.
Rick Thaler, Director, Texas Department of
Criminal Justice, Correctional Institutions Division
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
Before KING, DAVIS and BENAVIDES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
State prisoner Phillip Robert Critchley, Jr. appeals the denial of his 28
U.S.C. § 2254 petition as untimely. This court granted Critchley a certificate of
appealability to determine whether he was entitled to relief under 28 U.S.C. §
2244(d)(1)(B), which tolls the AEDPA limitations period until “the date on which
the impediment to filing an application created by State action in violation of the
Constitution or laws of the United States is removed, if the applicant was
prevented from filing by such State action.” We conclude that the Hays County
District Clerk’s office’s apparent practice of mishandling prisoner filings
constitutes a state impediment under 28 U.S.C. § 2244(d)(1)(B) which tolled the
No. 07-50208
AEDPA limitations period applicable to Critchley. Accordingly, his § 2254
petition was timely and we reverse.
I.
In November 2000, Phillip Robert Critchley, Jr., Texas prisoner # 1021494,
was convicted in Texas state court of sexual assault and sentenced to 20 years
in prison. In March 2006, Critchley filed a 28 U.S.C. § 2254 petition in the
district court wherein he raised numerous claims, including ineffective
assistance, insufficient evidence, double jeopardy, and prosecutorial misconduct.
At the same time he filed his § 2254 petition, Critchley filed an “amended
motion” for leave to proceed under § 2254 in which he asserted that his § 2254
petition was not untimely because the State had interfered with his attempts to
file a state habeas application. Critchley asserted that he initially mailed his
state habeas application on July 18, 2003, but that the application was not filed
in the Hays County District Clerk’s office.1 Critchley also asserted that he
attempted to refile the application on February 20, 2004. After being notified by
letter dated July 7, 2004 that neither application was on file with the Hays
County District Court, he submitted an amended application that was received
in December 2004, but not filed by Hays County until April 2005. Critchley
asserted that because the State had interfered with his attempts to file his state
habeas application, he was entitled to either equitable tolling or statutory tolling
under 28 U.S.C. § 2244(d)(1)(B).
The magistrate judge issued a report recommending that Critchley’s
petition be denied as untimely. The magistrate judge gave Critchley “the benefit
of the doubt” on his assertion that he mailed a state habeas application in July
2003, and determined that it was “entirely possible” that Critchley had mailed
1
The statute of limitations began running in September 2002, when Critchley’s
conviction became final, and it expired one year later in September 2003. The July 2003
application was the only filing made within the one-year period.
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the application. The record contains evidence that Critchley submitted packages
to the prison mailroom for mailing to the District Clerk that were actually
mailed on July 19, 2003 and February 20, 2004. The magistrate judge noted
that he had presided over “several other cases in which state habeas petitioners
have similarly had their pleadings not filed by the Hays County District Clerk.”
The magistrate judge stated further that it was not clear “if the Hays County
District Clerk simply discards state prisoners’ mail, ignores it, loses it, or is so
disorganized that filings are lost before they reach the file. Whatever the case,
because of its experience with the Hays County District Clerk’s office from other
cases, the Court finds it entirely possible that Petitioner did in fact mail two
separate applications for habeas relief, neither of which were filed by the clerk.”
The magistrate judge determined that Critchley was not entitled to
equitable tolling, however, because he had shown a lack of diligence in pursuing
relief based on the amount of time that passed between his attempted filings.
This ruling was based on the fact that Critchley received notice by letter dated
July 7, 2004 that his state habeas petition had not been filed with the state
court. His next attempt to file did not occur until December 3, 2004. The
magistrate judge did not address whether Critchley was entitled to statutory
tolling under § 2244(d)(1)(B).
Critchley filed objections to the report and recommendation wherein he
again argued that he was entitled to tolling under § 2244(d)(1)(B). Critchley also
argued that either his prison unit mailroom had not sent the applications, or the
Hays County District Clerk had not filed them, but that in either case, the State
had created an impediment that prevented him from filing his state application,
citing Egerton v. Cockrell, 334 F.3d 433 (5th Cir. 2003).
The district court overruled Critchley’s objections and denied the petition
as untimely. The court made note of the magistrate judge’s statement that it
was “entirely possible” that the Hays County District Clerk’s Office failed to file
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No. 07-50208
Critchley’s first two habeas applications. The court determined, however, that
such did not excuse Critchley’s failure to diligently pursue his claims and that,
therefore, the magistrate judge correctly rejected Critchley’s claim for equitable
tolling. Like the magistrate judge, the district court did not, however, address
Critchley’s argument that he was entitled to statutory tolling under §
2244(d)(1)(B).
Following the denial of certificate of appealability (COA) by the district
court, Critchley moved for a COA in this court. We granted a COA solely “on
the issue whether Critchley was entitled to relief under § 2244(d)(1)(B).”
II.
The AEDPA established a one-year statute of limitations for federal
habeas proceedings. 28 U.S.C. §2244(d)(1). The limitations period usually
begins to run when the state court judgment become final after direct appeal, or
the time for seeking such review expires. Id. § 2244(d)(1)(A). Under §
2244(d)(1)(B), the commencement of one-year limitation period is delayed until
“the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action.” Id. §
2244(d)(1)(B). The Respondent argues that this provision does not apply to
Critchley because it requires that the state-created impediment prevent the
filing of a federal, as opposed to state, habeas application. Although that
position is arguably supported by the language of the statute, we have never so
held. In fact in Egerton v. Cockrell, 334 F.3d 433 (5 th Cir. 2003), our discussion
of § 2244(d)(1)(B) recognized the interrelationship between the filing of federal
and state habeas petitions. Egerton argued that he was prevented by the
inadequacy of the state prison library from seeking all post-conviction review of
his state conviction, including a direct appeal, post-conviction relief in state
court and a federal habeas petition. We agreed that the inadequate library at
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No. 07-50208
the facility in which he was incarcerated, which did not include copies of
AEDPA, was a state-created impediment thereby tolling the AEDPA limitations
period because those federal rules provide the basic procedural rules a prisoner
must follow at all stages of the post-conviction process in order to avoid having
his federal habeas petition summarily thrown out of court. Although AEDPA
sets the rules for federal habeas petitions, success under those rules is
dependent upon first making a timely and sufficient state petition. Under
AEDPA, a timely filed state petition tolls the limitations period for filing a
federal habeas petition and the contents of the state petition affect the claims
that may be brought to the federal court.
As applied to this case, giving Critchley the benefit of the doubt as well as
reasonable inferences from the record and the magistrate judge’s findings,
Critchley attempted to file his state petition in July 2003, with 68 days
remaining in the one year AEDPA limitations period. 2 The state court’s failure
to process that application and others filed by Critchley, coupled with its
apparent failure to process petitions filed by other prisoners constitutes a state-
created impediment under § 2244(d)(1)(B). That impediment tolled the AEDPA
limitations period at least until April 4, 2005, when the Hays County Clerk
finally filed Critchley’s state habeas petition. Under 28 U.S.C. § 2244(d)(2), the
state petition then tolled the AEDPA limitations period during its pendency.
After Critchley was finally successful in getting the state court to accept and
hear his third petition, he filed his federal habeas petition within 68 days after
the state court decision. His federal petition was therefore timely.
2
Although Critchley argues that under the “mailbox rule” his petition should be
deemed filed when delivered for mailing to prison officials, this circuit declined to extend the
mailbox rule to the determination of filing dates for state habeas applications. Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999).
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No. 07-50208
The Respondent also argues that Critchley could have avoided the
inability to exhaust state remedies by the filing of a protective federal habeas
petition, citing Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). The Respondent
does not explain, however, how Critchley could have known to file such a petition
until he became aware that his state application had not been filed and thus did
not toll the limitations period.
III.
The district court also rejected Critchley’s petition based on its conclusion
that any failure by the Hays County District Clerk’s office did not excuse
Critchley’s failure to diligently pursue his claims after he was informed in July
2004 that his prior attempts to file state petitions were unsuccessful. The
district court concluded that Critchley was not entitled to equitable tolling
because Critchley’s next attempted filing was not mailed December 3, 2004.
This analysis ignores statutory tolling under § 2244(d)(1)(B), as well as the Hays
County clerk’s inexplicable failure to file the petition it received on December 3,
2004 until April 4, 2005. The lengthy delay between the clerk’s receipt of
Critchley’s petition and its filing indicate that the state-created impediment was
not alleviated at that point. If Critchley’s initial July 2003 petition had not been
ignored by Hays County, that timely petition would have tolled the federal
limitations period and further diligence by Critchley would not have been
necessary. Because of our conclusion that a state created impediment existed
which tolled the AEDPA limitations period, Critchley’s federal habeas petition
was timely and equitable tolling has no applicable to this case.3
3
This court has held that when the state fails to provide notice of its ruling on a state
habeas petition to the affected petitioner as is required by Texas law, equitable tolling rules
govern that situation. Hardy v. Quarterman, 577 F.3d 596 (5th Cir. 2009). This case involves
the more egregious failure by the state to file the petitioner’s state habeas petition.
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No. 07-50208
IV.
Under the unique circumstances of this case, we conclude that the failure
of the Hays County Clerks Office to timely file Critchley’s and other prisoners’
petitions for state post-conviction relief qualifies as a state-created impediment
under § 2244(d)(1)(B). That impediment tolled the AEDPA limitations period
while it existed. Accordingly, we reverse the judgment of the district court that
Critchley’s federal petition was untimely and remand for further proceedings
consistent with this opinion.
REVERSED and REMANDED.
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