IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 28, 2009
No. 07-50580
Charles R. Fulbruge III
Clerk
BARRY MICHAEL WION,
Petitioner-Appellee-
Cross-Appellant,
versus
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent-Appellant-
Cross-Appellee.
Appeals from the United States District Court
for the Western District of Texas
Before SMITH and SOUTHWICK, Circuit Judges,
and ENGELHARDT, District Judge.*
JERRY E. SMITH, Circuit Judge:
*
District Judge of the Eastern District of Louisiana, sitting by designation.
No. 07-50580
I.
Barry Wion is a Texas prisoner. At his first parole hearing, on August 26,
2004, the Texas Board of Pardons and Paroles (“the Board”) denied parole under
a new procedure created by Senate Bill 45, codified as T EX. G OV’T C ODE § 508.046
(Vernon 2004), after the time of his conviction.
Wion contends that applying the new procedure violates the Ex Post Facto
Clause of the United States Constitution, Article I, section 10. He filed a request
for special review of his parole denialSSa type of administrative appealSSin
May 2005. The review was denied on October 11, 2005. Meanwhile, he filed
state petitions for writs of habeas corpus on August 12, 2005, but they were dis-
missed on October 26, 2005, for noncompliance with state rules. Wion filed this
federal habeas petition on September 20, 2005, while his special review and ini-
tial state habeas petitions were pending. Finally, he properly re-filed the state
petitions in November 2005, and they were denied in January 2006.
The federal district court held that Wion’s habeas petition is timely be-
cause of tolling of the limitations period, and in the alternative, if it was not
timely, that equitable tolling should apply. The court then granted Wion’s ha-
beas claim in part and ordered that his future parole hearings be conducted un-
der the law in effect at the time of his conviction. Concluding that tollingSS
equitable or otherwiseSSshould not apply, we reverse and render.
II.
A.
Issues of law in a habeas proceeding are reviewed de novo. See Richardson
v. Joslin, 501 F.3d 415, 417 (5th Cir. 2007). Under the Anti-terrorism and Effec-
tive Death Penalty Act of 1996 (“AEDPA”), there is a one-year limitations period,
28 U.S.C. § 2244(d), that runs from latest of several possible events. See id. The
one that applies in this case is the Board’s denial of parole in August 2004.
2
No. 07-50580
Without tolling, Wion’s habeas petition would have been due in August 2005, but
it was filed in September 2005.
1.
Wion argues that limitations were tolled while his special review request
was pending. Before pursuing federal habeas relief, a petitioner is required to
exhaust all state procedures for relief. See Orman v. Cain, 228 F.3d 616, 619-20
(5th Cir. 2000). Wion made his special review request in May 2005, well within
the one-year period; it was still pending when he filed his federal habeas petition
and was denied about a month later.
The question whether special review tolls the AEDPA limitations period
is one of first impression in this circuit. A comparison with the law governing
prison good-time credit is instructive. Texas law does not allow a prisoner to file
a state habeas petition regarding a revocation of good-time credits unless he first
obtains a written decision from the administrative procedure. See Ex parte
Stokes, 15 S.W.3d 532 (Tex. Crim. App. 2000). This requirement is plainly stat-
ed in the statute. See T EX. G OV’T C ODE § 501.0081(b) (Vernon 2004). By con-
trast, the regulations creating the special review process do not indicate that
special review has any effect on a potential habeas petition. See 37 T EX. A DMIN.
C ODE § 145.17.
Texas courts have allowed prisoners to bring state habeas claims without
having gone through special review. See Ex parte Geiken, 28 S.W.3d 553, 555-56
(Tex. Crim. App. 2000). Because Wion was not required to seek special review
to exhaust his state remedies, AEDPA limitations were not tolled while his spe-
cial review was pending.
3
No. 07-50580
2.
Wion contends the limitations period should have tolled while his state ha-
beas petitions were pending. He first filed his state habeas petitions on August
12, 2005, which was before the deadline for filing for federal habeas relief. His
petitions were dismissed for failure to meet the filing requirements in the state
rules. Only a “properly filed petition for State post-conviction or other collateral
review” will toll limitations. 28 U.S.C. § 2244(d)(2) (emphasis added). We “defer
to [state] courts’ application of state law” to determine whether a habeas petition
is properly filed. Emerson v. Johnson, 243 F.3d 931, 935 (5th Cir. 2001).
AEDPA limitations was not tolled for Wion’s improperly-filed state habeas peti-
tions.
Wion re-filed his petitions, this time properly, in November 2005, but that
was after the one-year AEDPA limitations had run. The re-filed petitions could
not have tolled limitations.1
B.
The district court held, in the alternative, that if the statute of limitations
was not necessarily tolled while Wion proceeded with his special review request,
it was equitably tolled, because he diligently pursued it as a state remedy. We
review equitable tolling for abuse of discretion.2
Equitable tolling is granted only in “rare and exceptional circumstances.”
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). It is not justified merely
because an attorney makes a mistake of law regarding limitations. For example,
in United States v. Riggs, 314 F.3d 796, 800 (5th Cir. 2002), we reversed the in-
1
See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (explaining that state habeas
petition filed after AEDPA limitations period does not toll limitations).
2
See, e.g., Prieto v. Quarterman, 456 F.3d 511, 514 (5th Cir. 2006); Caldwell v. Dretke,
429 F.3d 521, 530 n.23 (5th Cir. 2005).
4
No. 07-50580
vocation of equitable tolling where an attorney’s error or neglect caused the pe-
tition to be filed late.
Even where, as here, the applicable law is unclear or unsettled, a mistaken
interpretation of the law is not a “rare and exceptional circumstance” that justi-
fies equitable tolling. The petitioner should “err on the side of caution and file
[the] petition within the most conservative of possible deadlines.”3 It follows that
if limitations were not automatically tolled during the special review, Wion’s be-
lief to the contrary does not justify equitable tolling.
In summary, Wion did not file for federal habeas within the one-year peri-
od. He was not entitled to tolling based on his pursuit of state relief, and the dis-
trict court abused its discretion by granting equitable tolling in the face of his
lack of exceptional circumstances. The petition is time-barred, and the judgment
is REVERSED and RENDERED for the state.4
3
Fierro v. Cockrell, 294 F.3d 674, 683 (5th Cir. 2002). See also Flores v. Quarterman,
467 F.3d 484, 487 (5th Cir. 2006) (per curiam) (“In the absence of ‘rare and exceptional circum-
stances,’ the district court abused its discretion in invoking equitable tolling where Flores, in
the face of uncertainty as to which date to abide by, elected the later date.”).
4
We dismiss Wion’s cross-appeal, in which he claims the district court should have
granted him an immediate new parole hearing.
5