IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2009
No. 07-11152
Summary Calendar Charles R. Fulbruge III
Clerk
STEVEN RAY NELSON,
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 Northern District of Texas
USDC No. 3:06-CV-1562
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Steven Ray Nelson, Texas prisoner # 1130776, was convicted by a jury of
aggravated assault on a public officer. The district court dismissed as untimely
Nelson’s 28 U.S.C. § 2254 petition challenging this conviction. On appeal,
Nelson asserts that he is entitled to equitable tolling because the Texas Court
of Criminal Appeals did not promptly advise him of the dismissal as premature
of his first state postconviction application challenging this conviction, although
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 07-11152
the court advised Nelson of the dismissals of two other cases. Additionally, the
Texas Court of Criminal Appeals incorrectly informed Nelson that the
application was still pending when Nelson first asked about the case’s status.
The district court determined that Nelson was not prevented by the
misinformation from filing a second application and that he was not entitled to
equitable tolling.
The respondent, who did not appear before the district court, has
submitted the state records and prison mail logs in conjunction with its
contention that Nelson’s federal petition was properly dismissed. A review of the
incoming mail logs reflects that the Texas Court of Criminal Appeals sent
Nelson three pieces of mail which were received on January 14, 2005, two days
after the dismissal of Nelson’s three postconviction applications. If these three
documents constituted the three dismissals, and if Nelson received the pertinent
dismissal in 2005, his 14-month delay in filing a second postconviction
application challenging that conviction would not constitute sufficient diligence
to warrant equitable tolling. See Coleman v. Johnson, 184 F.3d 398, 402-03 (5th
Cir. 1999) (no equitable tolling when prisoner waited six months after receiving
notice of the denial of state relief before filing a federal petition). If, however,
facts are found showing that Nelson did not receive the notice, the equitable
tolling question remains pertinent. The district court is in a better position to
obtain affidavits from Nelson and from the prison mail authorities, if necessary,
to determine the contents of the three pieces of mail Nelson purportedly received
on January 14, 2005, and whether Nelson in fact received all of those documents.
Moreover, since the district court’s ruling in this case, this court has issued
a published opinion addressing the degree of diligence that a prisoner must show
in seeking information about the resolution of a state application. See Hardy v.
Quarterman, 577 F.3d 596, 598-99 (5th Cir. 2009). In the event that the district
court determines that Nelson did not receive notice of the state court’s denial in
January 2005, the court may consider whether Nelson’s actions in requesting
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No. 07-11152
information from the Texas Court of Criminal Appeals about the resolution of
the postconviction application within two weeks of receiving the dismissals in
the other two cases, then following up one year later after the Texas Court of
Criminal Appeals provided incorrect information about the case’s status,
constitute sufficient diligence in light of Hardy and the cases cited therein.
Consequently, the judgment of the district court is VACATED, and the case is
REMANDED for further proceedings in conformity with this opinion.
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