Melancon v. Kaylo

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-30439
_____________________

MICHAEL MELANCON, also known
as Kevin A. Melancon

Petitioner-Appellant,

versus

BARON KAYLO, Warden,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the
Eastern District of Louisiana

_________________________________________________________________

August 6, 2001

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Kevin A. Melancon, Louisiana prisoner # 98471, appeals the

district court’s dismissal of his 28 U.S.C. § 2254 petition as

time-barred. Melancon was granted a Certificate of Appealability

(“COA”) as to whether his supervisory writ application to the

Louisiana Court of Appeal was “properly filed” and whether his

state post-conviction application was “pending” until February 5,

1999, thereby allowing him to toll the limitations period under 28

U.S.C. § 2244(d)(2). Because we find that Melancon was not
entitled to tolling for a period of time that would make his § 2254

application timely, we affirm the dismissal.

I

In October 1992, a Louisiana jury convicted Melancon of

possession of cocaine. The trial court sentenced him to twenty

years’ imprisonment because he was a four-time multiple offender.

Melancon’s conviction and sentence were affirmed on direct appeal.

On March 11, 1994, the Louisiana Supreme Court denied Melancon’s

application for a supervisory writ.

On November 6, 1996,1 Melancon filed a state habeas

application contending that he was denied his Sixth Amendment right

to the effective assistance of counsel. In February 1997, after

the trial court failed to acknowledge his petition, Melancon filed

a writ of mandamus with the Louisiana Court of Appeal urging the

court to direct the Orleans Parish District Attorney to respond to

his application. The Court of Appeal granted this motion in April

1997 and directed the trial court to appoint Melancon an attorney

and to conduct an evidentiary hearing. On December 9, 1997, the

trial court denied Melancon’s habeas application on the merits.

On May 8, 1998, approximately five months after his

application for a supervisory writ was rendered untimely under

1
Although the Louisiana Court of Appeal noted that Melancon
asserted that he filed his application on October 9, 1996, the
magistrate judge found that Melancon did not file his application
for post conviction relief until November 6, 1996. This disparity
does not alter the outcome of the case.

2
Louisiana Court of Appeals Rule 4-3, Melancon filed an application

for a supervisory writ with the Court of Appeal. The Court of

Appeal granted the writ on August 13, 1998, but denied relief. The

Court of Appeal suggested that Melancon’s application was untimely,

but noted that the trial court set the return date as May 8, 1998.

The opinion considered the merits of the claim “because this Court

ordered the evidentiary hearing in response to defendant relator’s

pro se writ.”

On August 27, 1998, Melancon filed a timely application for

rehearing from the Court of Appeal’s determination, which was

denied on September 30, 1998. He then filed an application for a

supervisory writ with the Louisiana Supreme Court on October 30,

1998. The Louisiana Supreme Court denied the writ without

explanation on February 5, 1999.

Melancon filed this pro se federal habeas petition on June 14,

1999, arguing again that he was denied the effective assistance of

counsel. The magistrate judge issued a report recommending

dismissal of Melancon’s § 2254 petition as time-barred. The

magistrate judge determined that both Melancon’s May 8, 1998

application for a supervisory writ to the Louisiana Court of Appeal

and his October 30, 1998 application for a supervisory writ to the

Louisiana Supreme Court were untimely, and therefore that the

tolling provisions in § 2244(d)(2) did not apply to these

applications. The district court, reviewing the magistrate judge’s

recommendations, the petitioner’s objections, and the record, found

3
that the one year statute of limitations was only tolled until

December 9, 1997, because the May 8, 1998 application for a

supervisory writ with the Court of Appeal was not “properly filed”

under the meaning of § 2244(d)(2). The district court also found

that even if Melancon was entitled to tolling while his application

for a supervisory writ was before the Court of Appeal, his

application was time-barred because the limitations period was not

tolled during the time between Melancon’s applications. The

district court therefore dismissed the § 2254 application.

This court granted Melancon a COA as to whether Melancon’s May

8, 1998, application for a supervisory writ was properly filed with

the Court of Appeals and whether Melancon’s state post-conviction

application was pending until February 5, 1999.

II

We review de novo the district court’s denial of Melancon’s

habeas application on procedural grounds. See Emerson v. Johnson,

243 F.3d 931, 932 (5th Cir. 2001). The Antiterrorist and Effective

Death Penalty Act (“AEDPA”) established a one year statute of

limitations on the filing of federal habeas applications. 28 U.S.C.

§ 2244(d)(1). Under § 2244(d)(2), “the time during which a

properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim

is pending shall not be counted toward any period of limitation

under this subsection.”

4
 Melancon, whose conviction became final prior to the enactment

of the AEDPA, was entitled to a one year grace period from the date

of AEDPA’s enactment--April 24, 1996--to file his § 2254 petition.

See Hall v. Cain, 216 F.3d 518, 520 (5th Cir. 1998). The one year

period therefore began on April 24, 1996 and continued until

Melancon filed his state post conviction application on November 6,

1996, encompassing 196 days of the limitations period. From that

point, the limitations period was clearly tolled until December 9,

1997, when the trial court denied post conviction relief.

After the trial court denied relief, Melancon had thirty days

to request review of the trial court’s determination, according to

Louisiana Court of Appeal Rule 4-3.2 However, Melancon did not

file his application for a supervisory writ to the Louisiana Court

of Appeal until May 8, 1998. The Louisiana Court of Appeal denied

2
Rule 4-3 provides
When an application for writs is sought to review the actions
of a trial court, the trial court shall fix a reasonable time
within which the application shall be filed in the appellate
court, not to exceed thirty days from the date of the ruling
at issue. Upon proper showing, the trial court or the
appellate court may extend the time for filing the application
upon the filing of a motion for extension of return date by
the applicant, filed within the original or an extended return
period. An application not filed in the appellate court
within that time so fixed or extended shall not be considered,
in the absence of a showing that the delay in filing was not
due to the applicant’s fault. The application for writs shall
contain documentation of the return date and any extensions
thereof; any application which does not contain this
documentation may not be considered by the appellate court.
Louisiana Courts of Appeal Uniform Rule 4-3 (emphasis added).
While the trial court set the return date as May 8, 1998, it did
not extend the time for filing the application.

5
his application on the merits on August 13, 1998. His application

for rehearing and his application for a supervisory writ to the

Louisiana Supreme Court were then timely filed. After the

Louisiana Supreme Court’s denial of Melancon’s application on

February 5, 1999, the limitations period clearly ran until June 14,

1999, when Melancon filed his federal habeas application, adding

another 129 days to the limitations period.

This pattern of events leads to two issues, both of which must

be resolved in Melancon’s favor to find this habeas petition timely

filed. First, Melancon’s untimely application for a supervisory

writ to the Court of Appeal must have be considered “properly

filed” under § 2244(d)(2) to merit tolling the time between May 8,

1998 and February 5, 1999. Second, Melancon’s claims before the

trial court must have been “pending” between the trial court’s

December 9, 1997 denial of relief and his May 8, 1998 application

to the Court of Appeal to merit the tolling provision under §

2244(d)(2) for that time period. If the limitations period on

Melancon’s federal habeas application was not tolled for either of

those blocks of time, Melancon’s § 2254 application is untimely.

Louisiana Court of Appeal Rule 4-3 allows the Court of Appeal

to consider an application that was not timely filed if there is a

“showing that the delay in filing was not due to the applicant’s

fault.” Because Rule 4-3 entitled the Court of Appeal to consider

Melancon’s application for a supervisory writ on the merits, and

6
the Court of Appeal did consider Melancon’s application on the

merits, the May 8, 1998 application was “properly filed” in state

court.3 See Emerson, 243 F.3d at 934 (finding that we defer to

state courts’ application of state law when determining whether

something is “properly filed”); Dilworth v. Johnson, 215 F.3d 497,

501 (5th Cir. 2000) (noting that because the petitioner’s

application was “‘accorded some level of judicial review’ by the

state courts, it is considered a ‘properly filed application’ under

section 2244(d)(2)”) (citing Villegas v. Johnson, 184 F.3d 467, 470

n.2 (5th Cir. 1999)). Melancon’s subsequent application for

rehearing and application for a supervisory writ were both timely

3
Our cases suggest that we should defer to the state court’s
determination that an application is “properly filed.” The Tenth
Circuit, however, recently held that a state court’s decision to
reach the merits of a case does not answer the question of whether
the application was “properly filed.” Gibson v. Klinger, 232 F.3d
799, 806 (10th Cir. 2000) (“Having adopted an approach that does
not consider state court decisions that petitions are procedurally
barred, we will not adopt a contrary approach when state courts
decide to reach the merits of petitions.”). While we follow the
Tenth Circuit in looking only to state procedural filing
requirements in determining whether something is “properly filed”
and not to whether a state court ultimately determined the
application to be procedurally barred, our concerns over comity and
exhaustion of state remedies cut the other way when a state court
determines that something is not procedurally barred. Federal
courts should not undermine a state’s decision to hear the merits
of a petition by refusing to toll the period of limitations under
§ 2244(d)(1) while the petition is pending. See Villegas v.
Johnson, 184 F.3d 467, 471 (5th Cir. 1999)(“we find it unlikely
that Congress intended its tolling provision to result in
indifference to, or even interference with, a given state’s
handling of petitions for post-conviction relief.”).

7
filed;4 thus, these applications also tolled the limitations

period.

The main issue on appeal, then, is the question of when the

state habeas application was considered to be “pending” under §

2244(d)(2). The district court only tolled the limitations period

for periods of time in which an application was actually before the

Louisiana court; it allowed the limitations period to run during

the time between the date of one state court’s decisions and the

petitioner’s filing of a further appeal. However, if Melancon’s

application was “pending” during the time between the trial court’s

denial in December, 1997, and Melancon’s application for a

supervisory writ to the Court of Appeal in May, 1998, his § 2254

application was properly filed.

As a starting point for our analysis, we must consider whether

the time period for a federal habeas application is tolled during

the intervals between the state court’s denial of post-conviction

relief and the timely appeal from that denial. This determination

affects the total number of days tolled between the Court of

Appeal’s denial of the writ and the Supreme Court’s denial of the

application for a supervisory writ. Every circuit that has

4
Respondent contends that Melancon did not file his application
for a supervisory writ to the Louisiana Supreme Court within thirty
days of the Court of Appeal’s August 13, 1998 denial of relief. See
Supreme Court Rule X, § 5(a). Melancon, however, filed a timely
motion for rehearing, which was not denied until September 30,
1998. Thus, Melancon’s application to the Supreme Court on October
30, 1998, was timely because it was filed thirty days after the
petition for rehearing was denied. Id.

8
addressed the issue has found that a state application is “pending”

during the intervals between the state court’s disposition of a

state habeas petition and the petitioner’s timely filing of a

petition for review at the next level. See Bennett v. Artuz, 199

F.3d 116, 119 (2d Cir. 1999); Swartz v. Myers, 204 F.3d 417 (3d

Cir. 2000); Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999);

Peterson v. Gammon, 200 F.3d 1202 (8th Cir. 2000); Nino v. Galaza,

183 F.3d 1003, 1005 (9th Cir. 1999); Gibson v. Klinger, 232 F.3d

799, 803 (10th Cir. 2000). These cases note that finding that

state applications are “pending” after a disposition but before the

timely filed appeal is a logical construction of the statute.

Including the time period before an appeal is timely filed from the

lower court’s judgment as time when an application is “pending” is

consistent with the concept of state exhaustion of remedies: If the

time between a disposition but before a timely filed appeal is not

tolled, a habeas petitioner is likely to file a protective federal

petition before he has fully exercised all state appeals if there

is a possibility that the right to federal habeas might be

extinguished. We find this reasoning persuasive, and therefore

hold that § 2244(d)(2) tolls the entire period allotted for timely

state appellate review. Melancon’s § 2254 petition was therefore

tolled from May 8, 1998, to February 5, 1999, while his properly

filed state habeas applications were “pending.”

Although Melancon’s May 8, 1998, application was properly

filed, and his state applications were pending until February 5,

9
1998, Melancon’s § 2254 application is not necessarily timely.

Melancon also requires tolling of the six months that passed

between the trial court’s disposition of the case and Melancon’s

May 8, 1998 application to the Court of Appeal. That time period

includes five months after Melancon was no longer entitled to an

appeal under Rule 4-3.

Although we have not addressed what effect the finding that an

untimely application was “properly filed” would have on determining

whether the application was “pending” during the period prior to

filing, the Seventh and the Tenth Circuits have both found that an

application ceases to be “pending” after the statutory period to

appeal expired and that tolling can begin again when an application

is properly filed. See Fernandez v. Sternes, 227 F.3d 977 (7th

Cir. 2000); Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000). But

see Saffold v. Newland, 227 F.3d 1087 (9th Cir. 2000) (holding that

all time from the commencement of the collateral attack is excluded

under § 2244(d)(2)). In holding that a petitioner’s application

was not “pending” until the petitioner actually sought his appeal,

the Tenth Circuit reasoned that a petitioner who is not actually in

the legitimate process of appealing is not “attempting to exhaust

state court remedies” and therefore is not entitled to the tolling

provision. Gibson, 232 F.3d at 806-07. The Seventh Circuit noted

that allowing tolling under § 2244(d)(2) “after the time for

further review has expired without further action to continue the

litigation . . . would sap the federal statute of limitations of

10
much of its effect.” Fernandez, 227 F.3d at 980. Both circuits

expressed concern over the potential for indefinite tolling.

We recently held that a petitioner’s “application seeking

post-conviction relief in the Louisiana trial court ceased to be

‘pending’ within the meaning of section 2244(d)(2) when he failed

timely to file an application for a supervisory writ with the

Louisiana Supreme Court.” Williams, 217 F.3d at 309. We reasoned,

based on definitions of “pending” articulated in other circuits,

that a case was no longer pending when further appellate review was

unavailable. Id. at 310. While this holding was expressly limited

to situations in which a state court failed to consider the merits

of the untimely application, Id. at 311 n.8., it applies equally to

situations in which a state court did consider the merits of an

untimely application. At the point when the state limitations

period expired, a petitioner is not entitled to further appellate

review and, therefore, he has no application “pending” in state

court. A state court’s subsequent decision to allow review may

toll the time relating directly to the application, but it does

not change the fact that the application was not pending prior to

the application. Thus, after the appeal period has lapsed, an

application ceases to be pending but a subsequent properly filed

application entitles the petitioner to additional tolling beginning

at the time of the “proper” filing. This finding is consistent

with Congress’s intent to encourage exhaustion of state remedies

without allowing petitioners to indefinitely toll the limitations

11
period.

Applying this reasoning, Melancon no longer had an application

“pending” in state court when he failed to file an application for

a supervisory writ with the Court of Appeal and failed to obtain an

extension. The “properly filed” May 8, 1998 application to the

Court of Appeal did not alter that fact; determining that the

application was “properly filed” simply tolled all subsequent

proceedings relating to that application. Melancon’s federal

habeas petition was therefore not tolled until May 8, 1998, because

his application for a supervisory writ with the Court of Appeal was

approximately five months later than provided for in Rule 4-3.

Because the time in which the limitations period was running

exceeded 365 days, Melancon’s federal habeas claim is time-barred.

III

Melancon argues that his application for a supervisory writ to

the Court of Appeals was not timely because the Louisiana trial

court incorrectly set the return date on the application.

Generally, “when a prisoner asserts that his ability to file a

federal habeas petition has been affected by a state proceeding, we

will examine the facts to determine whether the prisoner is

entitled to equitable tolling under § 2244(d)(1).” Coleman v.

Johnson, 184 F.3d 398, 402 (5th Cir. 1999). Although the parties

in this case did not explicitly raise the issue of equitable

tolling, Melancon’s pro se application for habeas relief is

12
entitled to liberal construction. See Haines v. Kerner, 404 U.S.

519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). Melancon’s

argument that he should not be punished for the trial court’s

improper setting of the return date on his application can

therefore be treated as a request for equitable tolling. Coleman,

184 F.3d at 402 (construing the pro se petitioner’s argument that

the “mailbox rule” should apply to his state habeas application as

a request for equitable relief).

The one year limitations period in § 2244(d)(1) is not a

jurisdictional bar and can be equitably tolled in exceptional

circumstances. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.

1999). The district court’s error in setting the return date of

the application might warrant equitable tolling. “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 rights.” Rashidi v. American

President Lines, 96 F.3d 124, 128 (5th Cir. 1996). Melancon seems

to have filed his untimely application for a supervisory writ in

accordance with the return date of May 8, 1998, set by the

Louisiana trial court.

Nonetheless, Melancon is not entitled to equitable tolling.

Equitable tolling should only be applied if the applicant

diligently pursues § 2254 relief. Scott v. Johnson, 227 F.3d 260,

262 (5th Cir. 2000); Phillips v. Donnelly, 216 F.3d 508, 511 (5th

Cir. 2000); Coleman, 184 F.3d at 403. After the Louisiana Supreme

13
Court denied Melancon’s application for a supervisory writ,

Melancon waited more than four months to file his federal habeas

petition. Because Melancon did not expediently file his federal

habeas petition, this circumstance is not extraordinary enough to

qualify for equitable tolling under § 2244(d)(1).

IV

For the foregoing reasons, we AFFIRM the district court’s

dismissal of Melancon’s § 2254 application as time-barred.

A F F I R M E D.

14
CARL E. STEWART, Circuit Judge, concurring in part, dissenting in

part:

I respectfully dissent from the majority’s determination that

Melancon’s claims before the state trial court were no longer

pending in state court when he failed to file timely for a

supervisory writ with the Louisiana Court of Appeal or to obtain an

extension. I concur in all other aspects of the majority opinion.

Because Melancon did not file his application until May 8,

1998, the issues to be resolved in this case, as stated by the

majority, are: (1) whether Melancon’s application for a supervisory

writ to the Louisiana Court of Appeal was “properly filed” under

28 U.S.C. § 2244(d)(2) to warrant tolling the time between May 8,

1998, and February 5, 1999, the date on which the Louisiana Supreme

Court denied his application for a supervisory writ and (2) whether

Melancon’s claims before the trial court were “pending” between the

trial court’s December 9, 1997, denial of relief and his May 8,

1998, application to the Louisiana Court of Appeal to warrant

tolling under § 2244(d)(2).

Regarding the first issue, the majority readily finds that

because Louisiana Court of Appeal Rule 4-3 allows a court of appeal

to consider an application for a supervisory writ that was not

timely filed and the Louisiana Court of Appeal did so in Melancon’s

case, his application was “properly filed” in state court. Thus,

15
the majority considers the main issue to be when his state habeas

application was considered “pending” under § 2244(d)(2).

Consistent with other circuits that have considered the issue,

the majority holds that a state habeas application is “pending”

during the intervals between the state court’s disposition of a

state habeas petition and the petitioner’s timely filing of a

petition for review at the next level. Thus, it finds that the

limitations period for Melancon to file his § 2254 petition was

tolled from May 8, 1998, (since that state filing is considered

“properly filed”) to February 5, 1999, while the properly filed

habeas applications were pending.

The majority notes, however, that Melancon’s federal habeas

petition requires tolling the time that lapsed between the trial

court’s disposition of the case on December 9, 1997, and Melancon’s

May 8, 1998, application to the court of appeal. It observes that

this Court recently held in Williams v. Cain, 217 F.3d 303, 309-

11(5th Cir. 2000), based on the definitions of “pending”

articulated in other circuits, that a case was no longer pending

when further appellate review was unavailable. However, it points

out that Williams’s holding was expressly limited to situations in

which a state court failed to consider the merits of the untimely

application. The majority then extends Williams’s holding to

situations in which the state court considered the merits of an

untimely application. Applying this rule, the majority finds that

16
Melancon’s habeas application was no longer pending in state court

when he failed to file timely for a supervisory writ with the

Louisiana Court of Appeal or to obtain an extension. It asserts

that this rule is “consistent with Congress’s intent to encourage

exhaustion of state remedies without allowing petitioners to

indefinitely toll the limitations period.”

While the majority’s conclusion that Melancon’s claims before

the trial court were no longer pending when he failed to file

timely for a supervisory writ with the Louisiana Court of Appeal is

not without some jurisprudential support, I am persuaded by a

recent decision by the Ninth Circuit. In Saffold v. Newland, 250

F.3d 1262, 1266-67 (9th Cir. 2001), amending Saffold v. Newland,

224 F.3d 1087 (9th Cir. 2000), the court determined that where the

California Supreme Court considered the merits of a petition for a

writ of habeas corpus, even though it was submitted four and one-

half months after the court of appeal denied relief, the petitioner

was entitled to tolling of the time between the court of appeal’s

denial and the California Supreme Court’s rejection of the

petitioner’s claims. The court tolled the intervening time even

though the California Supreme Court had applied the untimeliness

bar as an alternative ground for denying relief. Saffold, 250 F.3d

at 1266-67. The court found it significant that the California

Supreme Court had considered the petition “on the merits.” Id.

The court stated that “[t]he whole purpose of the tolling

17
requirement is to permit state courts to address the merits of the

petitioner’s claim” and that “[t]olling AEDPA’s statute of

limitations until the state has fully completed its review

reinforces comity and respect between our respective judicial

systems.” Id. at 1267 (internal quotations omitted) (alteration in

original). Furthermore, the court declined “to adopt a rule that

would require [a habeas petitioner] to have filed his federal

petition before the California Supreme Court ruled on the merits of

his claim.” Id. Thus, the court concluded that the petitioner was

entitled “to exclude from the calculation of the one-year

limitation the entire period from the filing of his first state

habeas petition in Superior Court until the denial of his habeas

petition by the California Supreme Court.” Id. at 1268.

In the instant case, the majority correctly notes that

Congress did not intend to permit petitioners to toll the

limitations period for filing habeas petitions indefinitely.

However, Congress clearly intended to allow tolling while a

properly filed habeas petition is pending before a state court.

The tolling provision in § 2244(d)(2) inherently defers to state

rules and procedures, particularly those pertaining to the

timeliness of a writ application. If a state permits an exception

to a filing deadline, then it follows that for § 2244(d)(2) tolling

purposes, federal courts should as well. In my view, once a state

court decides to consider the merits of an untimely petition, that

18
petition should be “purged” of all effects, including those arising

in federal court, resulting from its former untimely status. As

with the California Supreme Court’s review of the habeas petition

on the merits in Saffold, the Louisiana Court of Appeal’s decision

to review Melancon’s habeas application on the merits should render

the untimeliness of the application inconsequential for §

2244(d)(2) tolling purposes. See Romero v. Roe, 130 F.Supp.2d

1148, 1150 (C.D. Cal. 2001) (“The key question, [for § 2244(d)(2)

tolling purposes] is whether a particular petition was resolved on

the merits by the state court, not on the particular length of time

between the disposition of the earlier petition and the filing of

the next.”).

Because I would hold that Melancon is entitled to tolling of

the time that lapsed between the trial court’s disposition of his

case on December 9, 1997, and Melancon’s May 8, 1998, habeas

application to the court of appeal, I respectfully dissent.

19