IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 25, 2008
No. 05-30689
Charles R. Fulbruge III
Clerk
CHARLES T. BUTLER
Petitioner - Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:01-CV-2733
Before DAVIS and SOUTHWICK, Circuit Judges, and CLARK, District Judge.*
SOUTHWICK, Circuit Judge:
Charles Butler appeals the dismissal of his federal habeas petition, which
was found to be untimely. We affirm.
FACTS AND PROCEDURAL HISTORY
Butler is a Louisiana state prisoner. On May 23, 1997, he was convicted
of second-degree murder and sentenced to life imprisonment. See State v. Butler,
714 So. 2d 877, 882 (La. Ct. App. 1998). His conviction was affirmed on June 24,
1998. Id. at 880. Butler did not file a writ application to the Louisiana Supreme
Court (“direct review application”) within the thirty days required by the state
*
District Judge of the Eastern District of Texas, sitting by designation.
No. 05-30689
rule. He filed his (late) direct review application on August 5, 1998, which the
Louisiana Supreme Court denied on January 8, 1999. See State v. Butler, 734
So. 2d 1222 (La. 1999). Butler did not file a petition for a writ of certiorari to the
United States Supreme Court.
On October 29, 1999, Butler began state post-conviction proceedings. His
application was denied by a state district court on September 14, 2000. The
Court of Appeal denied review on January 25, 2001. The Louisiana Supreme
Court on November 9, 2001, again denied a writ application from Butler, this
time refusing to review the denial of post-conviction relief.
On December 10, 2001, Butler filed a federal habeas petition pursuant to
28 U.S.C. § 2254. The magistrate judge recommended that Butler’s petition be
dismissed as barred by the one-year statute of limitations. See 28 U.S.C. §
2244(d). The analysis used was that Butler’s August 5, 1998, direct review
application to the Louisiana Supreme Court was not timely filed under
Louisiana Supreme Court Rule X, § 5(a), which allows thirty days from the
judgment of the appellate court before filing is due in the Supreme Court.
Accordingly, Butler’s conviction became final on July 24, 1998, and the one-year
limitations period began to run on that date. Because Butler did not file his
federal habeas petition within one year after July 24, 1998, the magistrate judge
recommended that the petition be dismissed as time barred.
Butler filed objections, including that Louisiana Supreme Court Rule X,
§ 5(a) does not prohibit the filing of an out-of-time direct review application, and
that he was entitled to tolling for the approximately five-month time period
during which the application was pending before the Louisiana Supreme Court.
The district court found Butler’s federal petition to be time-barred.
Butler timely appealed. This court granted a certificate of appealability
on the issue of whether the district court erred in dismissing Butler’s Section
2254 petition as untimely.
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DISCUSSION
This court reviews a district court decision denying a habeas petition on
procedural grounds de novo. Johnson v. Cain, 215 F.3d 489, 494 (5th Cir. 2000).
There is a one-year period to bring a federal habeas petition under 28 U.S.C. §
2254. The “limitation period shall run from . . . the date on which the 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). However, “[t]he time during
which a properly filed application for State post-conviction or other collateral
review . . . is pending shall not be counted toward any period of limitation under
this subsection.” 28 U.S.C. § 2244(d)(2).
As he did in the district court, Butler argues here that the approximately
five-month period during which his direct review application was before the
Louisiana Supreme Court on direct appeal of his conviction (August 5, 1998 to
January 8, 1999) should not count against his federal statute of limitations
period. Butler argues that the limitations period did not start until after the
Louisiana Supreme Court’s January 1999 ruling, or alternatively, that he is
entitled to equitable tolling for the five-month time period his application was
pending. Whether this time period counts against Butler’s one year is the
essential question on appeal. If it does not count, Butler’s Section 2254 petition
was timely, and the district court’s dismissal was improper. If the time period
counts against Butler, his federal statute of limitations expired well before he
even filed his state habeas petition. We now turn to that question.
A. When Butler’s conviction became final
The statute of limitations for bringing a federal habeas petition
challenging a state conviction begins to run on “the date on which the [state]
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). When a habeas
petitioner has pursued relief on direct appeal through his state’s highest court,
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No. 05-30689
his conviction becomes final ninety days after the highest court’s judgment is
entered, upon the expiration of time for filing an application for writ of certiorari
with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693
(5th Cir. 2003). However, “[i]f the defendant stops the appeal process before that
point,” as Butler did here, “the conviction becomes final when the time for
seeking further direct review in the state court expires.” Id. at 694; see also
Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004) (Section 2244(d)(1)(A) gives
alternative routes for finalizing a conviction: either direct review is completed
or the time to pursue direct review expires).
Although federal, not state, law determines when a judgment is final for
federal habeas purposes, a necessary part of the finality inquiry is determining
whether the petitioner is still able to seek further direct review. See Foreman,
383 F.3d at 338-39. As a result, this court looks to state law in determining how
long a prisoner has to file a direct appeal. See Causey v. Cain, 450 F.3d 601, 606
(5th Cir. 2006); Roberts, 319 F.3d at 693. Louisiana Supreme Court Rule X, §
5(a) states that an application “to review a judgment of the court of appeal either
after an appeal to that court . . . or after a denial of an application, shall be made
within thirty days of the mailing of the notice of the original judgment of the
court of appeal.” Butler’s time for seeking further review of his state conviction
expired when he did not within thirty days of the Louisiana Court of Appeal’s
June 24, 1998 decision, challenge that decision in the state Supreme Court.
B. The running of the limitations period
Once the “expiration of the time for seeking” review of a state conviction
has occurred, Section 2244(d)(1)(A) starts the one-year period for filing for a
federal writ of habeas corpus. Because Butler’s conviction became final on July
24, 1998, as we just explained, the one-year period for petitioning for federal
habeas relief began on that date. A tolling provision appears in Section
2244(d)(2), which excludes the time “during which a properly filed application
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No. 05-30689
for State post-conviction or other collateral review . . . is pending.” Under that
provision it is only state post-conviction relief proceedings that cause tolling.
The five-month period Butler asserts caused tolling was when his
application was pending with the Louisiana Supreme Court on direct review.
Therefore, Section 2244 tolling was not involved. The issue as to that period is
whether his time for seeking review of his conviction expired at the beginning
or at the end of those five months. We explained above why those five months
were not part of his time for seeking direct review. When the Louisiana
Supreme Court denied his late application on January 8, 1999, close to half of
Butler’s one-year period to bring a federal habeas petition by July 24, 1999, had
passed. Butler did not file even his state habeas petition until October 29, 1999.
It is true that Section 2244(d)(2) would cause tolling for the period during which
the state habeas proceedings continued, but it was too late for a federal petition
even before the state petition was filed. There was nothing to toll.
C. Butler’s argument for alternate calculations
Butler argues that we have misunderstood the discretion that the
Louisiana Supreme Court had to consider his late request on direct appeal on
the merits.1 In his view, the January 1999, Supreme Court ruling was on the
merits and not just a recognition that he had filed too late for review. Based on
that premise, he argues that the one-year statute of limitations did not begin
1
As a preliminary matter, even if Butler were correct about the Louisiana Supreme
Court’s powers and actions, the “date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review” still might not change
from July 25, 1998. Unlike an analysis under the tolling provision of the statute, which relies
on the forum state’s interpretation of when a petition is “properly filed,” the evaluation of when
a conviction is final for federal habeas purposes is based on federal law. See Roberts, 319 F.3d
at 694 (Although “we look to state law for a determination of how long a prisoner has to file
a direct appeal,” there is “no reason to look to state law to determine when a state conviction
becomes final for purposes of § 2244(d)(1)(A).”); see also Causey, 450 F.3d at 606. In Roberts,
this court rejected a state rule specifying that a direct appeal is final when the mandate issues
from the court of appeals, and chose an earlier date for federal finality purposes. See Roberts,
319 F.3d at 693-94 & n.15.
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No. 05-30689
until the Louisiana Supreme Court’s January 8, 1999, denial. We examine more
closely the relevant Louisiana appellate procedures.
The Louisiana Supreme Court’s 1999 order contains only one word:
“denied.” See State v. Butler, 734 So. 2d 1222. Butler argues that a simple
“denied” cannot be based on untimeliness, relying in part on our statement in
2004 that “when the denial of an application is based on untimeliness, Louisiana
courts routinely and unmistakably indicate so in their opinions.” Grillette v.
Warden, 372 F.3d 765, 775 (5th Cir. 2004). In Grillette, though, we were
evaluating solely the practice of the Louisiana Court of Appeal under a rule
applicable only to it and not to the state’s Supreme Court; we cited only
intermediate court opinions for our conclusion. See id. at 769-70. Conversely,
in a pre-Grillette opinion, we found that a single-word denial order from the
Louisiana Supreme Court likely indicated untimeliness and not a merits
decision. Williams v. Cain, 217 F.3d 303, 304, 309 n.7 (5th Cir. 2000).
Butler also refers to numerous Louisiana Supreme Court orders which
specifically stated that the application was “not considered, not timely filed.”
See, e.g., State v. Baker, 939 So. 2d 1269 (La. 2006); State v. Shannon, 766 So. 2d
1261 (La. 2000); State v. Jones, 763 So. 2d 586 (La. 2000). However, those
examples do not prove the negative, that the absence of such language when
Butler’s application was denied means that the merits were reached.2
Most persuasive to us, the Louisiana Supreme Court would have violated
its own rule if it had considered Butler’s petition on the merits. A Louisiana
2
A 2006 decision from this court cited Grillette and applied its disposition-on-the-merits
assumption to a Louisiana Supreme Court “denial” order. Causey, 450 F.3d at 606-07. The
assumption in Causey was more warranted than it is here. There was good reason to believe
that Causey’s direct review application was actually timely and should have been considered
on the merits. Id. at 602. This court’s assumption that it was heard on the merits was
therefore fully justified. In contrast, Butler concedes that his direct review application was
untimely filed. Though Causey applied Grillette’s assumption to the same order language that
is at issue here, a case that predates Causey did not do so. Williams, 217 F.3d at 309 n.7.
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Supreme Court rule requires that an “application seeking to review a judgment
of the court of appeals,” must be filed within thirty days; it specifies that “[n]o
extension of time therefor will be granted.” La. Sup. Ct. R. X, § 5(a). While
another section of the Rule – Section 5(b) – allows the Supreme Court to extend
the time for filings under the subsection “upon proper showing,” that applies to
narrow categories of applications that do not include cases such as Butler’s.3
Finally, there is no indication that the state court granted an extension or
otherwise waived its own rule as to Butler. Butler did not even request an
extension of time to file his late direct review application. He has not claimed
that he received a letter from that court allowing a late filing such as did the
defendant in Hill v. Cooper, 2007 WL 458207, No. 04-2588 (E.D. La. 2007). We
are not aware of any case in which the Louisiana Supreme Court sua sponte
extended the amount of time in which to file under Rule X, § 5(a). Contra
Hughes, 249 F. App’x at 341 (Hughes requested and received an extension under
§ 5(b)); McGee v. Cain, 104 F. App’x 989 (5th Cir. 2004) (unpublished) (requested
and did not receive an extension under § 5(a)); Hill, 2007 WL 458207 at *2
(requested and did receive an extension – unclear what basis).
We conclude that the Louisiana Supreme Court found Butler’s application
for further review of his conviction to be untimely. Therefore, that court’s order
3
Section 5(b) describes the types of applications to which it applies: “When an
application is sought to review the action or inaction of a trial court in (a) a case in which the
court of appeal does not have supervisory jurisdiction, i.e., a criminal case in which a death
sentence has been imposed or in which a conviction and sentence were imposed before July 1,
1982, or (b) a case in which the court of appeal has supervisory jurisdiction but the applicant
seeks to file an application directly or simultaneously in this court (which application will not
ordinarily be considered by this court absent extraordinary circumstances) . . . .”
One of our opinions dealt with an extension and does not indicate that it was granted
pursuant to Section 5(b). Hughes v. Cain, 249 F. App’x 340, 341 (5th Cir. 2007) (unpublished).
The record in that case reveals that Hughes had filed one of the types of applications to which
Rule 5(b) applies. See Appellee’s Resp. to Court Order, No. 06-30561, docket entry of 2/12/07
at 2-3. The Appellee’s response makes clear that the “routine[]” granting of extensions to
which the opinion refers occurs “where simultaneous filings have been made with the Supreme
Court and a Court of Appeal” – a filing under Section 5(b), not 5(a). Id. at 3.
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No. 05-30689
does not bring into question the conclusion that the one-year period for Butler
to bring a federal habeas petition began on July 24, 1998.
D. Supplemental briefing issue
After Butler filed his opening brief, this court ordered the Louisiana State
Penitentiary warden as Appellee to file a brief addressing whether Butler’s
petition was untimely under the federal statute of limitations; we specifically
asked whether “under La. S. Ct. R. X, § 5(a), late-filed writ applications are not
‘properly filed’ for purposes of § 2244(d).” In its brief, the Appellee argued that
an untimely writ application to the Louisiana Supreme Court was not a
“properly filed” post-conviction review application “pending” in state court for
purposes of the tolling portion of the federal habeas statute. See Williams, 217
F.3d 303 (citing 28 U.S.C. § 2244(d)(2)).
After reviewing Williams and the briefs provided, we conclude that the
correct focus is elsewhere. That case dealt with a prisoner’s pending application
for review of his state habeas proceedings, an issue that raised tolling issues
under Section 2244(d)(2). Williams, 217 F.3d at 305-06. Our concern is when
Butler’s direct appeal of his state conviction became final under Section
2244(d)(1)(A). Filings that are not part of habeas or post-conviction proceedings
do not invoke Section 2244(d)(2) tolling. See Bridges v. Johnson, 284 F.3d 1201,
1203 (11th Cir. 2002). This is not a case in which it is unclear if a defendant’s
filing or request belongs to the direct review process or to the post-conviction
review process.4 Butler did not file an additional document which required
interpretation or classification. He did not submit a request to consider the
application even though it was untimely. The only document Butler filed related
4
See, e.g., Salinas v. Dretke, 354 F.3d 425, 430 (5th Cir.), cert. denied, 541 U.S. 1032
(2004) (determining that leave to file an untimely petition for discretionary review is obtained
through state habeas proceedings).
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No. 05-30689
to his untimely direct review application was the application itself, which is
indisputably a part of his direct appeal proceedings.
Accordingly, this appeal concerns only the commencement of Butler’s
federal statute of limitations under Section 2244(d)(1)(A). Our decision does not
involve what is a “properly filed” post-conviction application for purposes of the
Section 2244(d)(2) tolling.
E. Other arguments
In addition to his Section 2244(d) arguments, Butler contends that he is
entitled to equitable tolling because the state induced him into believing that his
direct review application to the Louisiana Supreme Court was timely. Butler
also argues that he did not receive the state appeal court’s June 24, 1998,
decision affirming his conviction until a month after it was issued. These
arguments were raised for the first time on appeal and may not be considered.
Johnson v. Sawyer, 120 F.3d 1307, 1316 (5th Cir. 1997). Butler also raised in
the district court, and repeats here, his claim that the tardiness of his habeas
petition should be excused because he is actually innocent. The district court
rightly rejected Butler’s claim as meritless. We need not address the argument
further here.
CONCLUSION
Butler’s conviction was final thirty days after the Court of Appeal’s
decision on direct appeal from the conviction. Because the entire one-year
statute of limitations had already run before he began his state post-conviction
proceedings, Butler is not entitled to statutory tolling pursuant to 28 U.S.C. §
2244(d)(2). Nor is Butler entitled to equitable tolling. Accordingly, the district
court correctly concluded that Butler’s federal habeas petition was untimely.
We AFFIRM.
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