Opinion
Civil Action No. 01-0172 Section "K"(4)
August 29, 2001
ORDER AND REASONS
Before the Court is Carlo Desalvo's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Desalvo is a state prisoner incarcerated in the Louisiana State Penitentiary at Angola, Louisiana. Desalvo was convicted of two counts of aggravated battery, two counts of armed robbery, and one count of second degree kidnapping. On December 18, 2000 Desalvo filed the instant petition alleging that: (1) he was denied the right to trial by jury; (2) he was exposed to double jeopardy; (3) the time limits for prosecution had expired; and (4) the prosecution failed to disclose a co-defendant's plea. The Magistrate Judge did not reach the merits of the petition, finding Desalvo's claim to be time-barred by approximately three months. Desalvo objected, arguing: (1) that the Magistrate erred in not tolling the limitations period for the time during which his applications for supervisory writs were pending in the Louisiana appellate courts; and (2) that the limitations period should be equitably tolled.
The Court after considering the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge and the Petitioner's Objections received on July 3, 2001, and having conducted a de novo review of those portions of the Report and Recommendation to which objections are made as required by 28 U.S.C. § 636 (b)(1), hereby rejects the Report and Recommendation of the United States Magistrate Judge and remands petitioner's application for further consideration in compliance with this order.
Statutory Tolling
Petitioner objects to the Magistrate's finding that the limitations period continued to run while his state applications for supervisory writs were pending. The Magistrate's recommendation reasoned that since the applications for supervisory writs were late-filed pursuant to Louisiana law, they were not "properly filed" and therefore could not act to toll the limitations period under the federal habeas corpus statute. The issue before this Court is whether the late filed applications are "properly filed", sufficient to toll the statute of limitations.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a one year statute of limitations for state prisoners to file federal habeas applications. 28 U.S.C. § 2244 (d)(1). However, the AEDPA also establishes that the one year limitations period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral renew . . . is pending." 28 U.S.C. § 2244 (d)(2). Because the AEDPA does not specify which state filings qualify as "properly filed", the courts have struggled with the precise meanings of the terms "filed", "properly filed", and "pending" and whether those terms are conterminous under state and federal law with the Fifth Circuit issuing several opinions attempting to clarify the matter.
The plain language of 28 U.S.C. § 2244 (d)(2) references state law; thus "the tolling provision inherently defers to state rules and procedures, particularly those pertaining to the timeliness of a writ application." Melancon v. Kaylo, 2001 WL 822453 at *7 (5th Cir. August 6, 2001) (Stewart, J. concurring in part, dissenting in part). Indeed, the "AEDPA was an attempt on the part of Congress to reduce federal intrusion into state criminal proceedings . . . encourage claim exhaustion . . . and accord greater deference to state court adjudications." Villegas v. Johnson, 184 F.3d 467, 470-71 (citations and internal quotations omitted). The tension between state and federal law arises when state courts accept a late filed application or other filing but the federal courts refuse to consider the application "properly filed" for tolling purposes in spite of the state court practice.
In Villegas, the Fifth Circuit held that a "properly filed application for § 2244(d)(2) purposes is one that conforms with a state's applicable procedural filing requirements." Villegas, 184 F.3d at 470. A procedural filing requirement in turn was defined as "those prerequisites that must be satisfied before a state court will allow a petition to be filed and accorded some level of judicial review." Smith v. Ward, 209 F.3d 383, 384 (5th Cir. 2000) (citing Villegas, 184 F.3d at 470, n. 2). Examples of those prerequisites are basic procedural requirements such as "the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 363 (2000). That being said, the touchstone principle demonstrated by the jurisprudence is that the federal courts defer to state courts' application of state law. See Emerson v. Johnson, 243 F.3d 931 (5th Cir. 2001). With respect to cases arising under Louisiana law, there are thus far three paradigms dealing with late-filed applications in various stages of the Louisiana post-conviction process. The common thread that runs through each of the paradigms is that the federal courts are comity-bound to consider a late filed state application "properly filed" if a state court has discretion to review the application.
The first scenario arises when a state prisoner files a late application for post conviction relief with the district court and that application is accepted for some level of judicial review. In Smith v. Ward, 209 F.3d 383 (5th Cir. 2000), the Fifth Circuit examined the relevant Louisiana statute, La. R.S. 930.8, and found that although the statute set a three year time limit for filing applications, that exceptions to the time bar were available under the statute. Even if the state court ultimately determines the application to be time-barred, the fact that it is accorded some level of judicial review to decide if an exception has been satisfied makes it "properly filed" under 28 U.S.C. § 2244 (d)(2).
The second scenario arises when the trial court denies a post conviction application and the prisoner, after the proscribed time period has elapsed, seeks a supervisory writ from the courts of appeal which considers the application on the merits. In Melancon v. Kaylo, 2001 WL 822453 (5th Cir. August 6, 2001) the court held that "[b]ecause [the appellate rules] entitle the Court of Appeal to consider [the prisoner's] application for a supervisory writ on the merits, and the Court of Appeal did consider . . . [the] application on the merits . . . [it] was `properly filed' in state court." Id. at *2 (citations omitted). Such a rule recognizes that the federal courts defer to state courts in deciding when a state application is properly filed. See id. at n. 3 (federal courts should not undermine a state's decision to hear the merits of a petition by refusing to toll the period of limitations while the state petition is pending); Emerson v. Johnson 243 F.3d 931 (5th Cir. 2001) (defer to state law to determine when something is properly filed).
Under article 930.6 of the Louisiana Code of Criminal Procedure, there is no appeal of a judgment dismissing an application for post-conviction relief. The petitioner's only remedy lies under the appellate courts' supervisory jurisdiction.
The third issue arises when a prisoner timely files his post conviction application with the trial court and writ application to the appellate court but does not timely file a writ application under supreme court Rule X, and the application is denied without reason. In Williams v. Cain, 217 F.3d 303 (5th Cir. 2000), the court held that since the supreme court rules absolutely prohibit late filed writ applications, an application filed after the strict thirty day deadline provided by that rule is not "properly filed" for federal habeas tolling purposes. Such a rule is based on the idea that "respect for state filing deadlines is consistent with the concern for comity that animates the many provisions of the AEDPA." Id. at 308. However, the issue in Williams was narrowly limited by the trial court's factual determination that the one word "denial" "inferred that the Louisiana Supreme Court had not exercised its discretionary supervisory jurisdiction" id. at 306, n. 3, and instead dismissed the application as time barred. See id. at 308-09. In any event, the Court of Appeals stated that the general exercise of the Louisiana Supreme Court's supervisory writ powers was not an express exception to Rule X and therefore could not operate to convert a late filed state writ application into a "properly filed" motion under federal law. Id. at 309.
With respect to petitioner's writ application to the Louisiana Fifth Circuit Court of Appeal, this Court must consider the application "properly filed." This matter is squarely addressed by the decision inMelancon v. Kaylo, which was issued subsequent to the preparation of the Report and Recommendation. All that Melancon requires is that the Louisiana Court of Appeal consider the merits of the application. Here, in its reasons for denial of the writ, the court stated that "[o]n the presentation, the application discloses no error in the trial court's ruling . . . "See State v. Desalvo, 99-1346 (La.App. 5th Cir. 12/18/99). This is clearly some level of judicial review on the merits. Thus, petitioner's federal habeas clock was tolled from December 8, 1999, when he filed to the writ application to the fifth circuit, to December 15, 1999 when the application for writs was denied. However, Desalvo's habeas petition is still time barred unless his supreme court writ application is considered "properly filed."
Although it was post marked January 20, 2000, petitioner's writ application to the Louisiana Supreme Court was filed on February 11, 2000. The Louisiana Supreme Court did not issue a ruling on the petition for nearly eight months. In a less than pellucid one word opinion, the court merely stated that the petition was "denied."
This case is similar to Williams in some respects. In both cases the applications for supervisory writs were late filed under Supreme Court Rule X, which "requires no examination on the merits." Williams at 309. In both cases, the applications were simply "denied" with no further explanation. It is different in other respects. Unlike Williams where the writ application to the supreme court was filed almost fourteen months after the appellate court denied the application for a supervisory writ, in this case, Desalvo's petition was postmarked thirty-six days, and filed by the clerk fifty-eight days, after the writ was denied by the fifth circuit.
Regardless of the similarities between the cases, this Court must diverge from Williams. Rather than divining the Louisiana Supreme Court's intent from tea leaves, this Court contacted the appropriate personnel at the supreme court. This Court was advised that, when an appellate court considers a writ application on the merits, the supreme court always examines the application on the merits. In other words, when the supreme court denies a writ application as time-barred, it expressly designates the appropriate statute, rule or case citation. In this case, therefore, when the fifth circuit court of appeal considered petitioner's claim on the merits, the supreme court's "denial" of the writ application was also on the merits. Therefore, despite the ostensible absolute prohibition in Rule X, it is the supreme court's custom to entertain applications such as petitioner's on the merits. This custom and practice of the supreme court was not part of the record or the district court opinion in Williams.
This Court contacted senior personnel at the Supreme Court of Louisiana's Central Staff, which processes the vast majority of writ applications, including those seeking post-conviction relief.
This custom must arise from the Supreme Court of Louisiana's constitutional authority under Article 5 of the Louisiana Constitution.
The question that must be answered then, is the effect of the Louisiana Supreme Court's practice of entertaining applications for supervisory writs on the merits when Rule X provides no authority to do so. An analogous situation arose in Emerson v. Johnson, 243 F.3d 931 (5th Cir. 2001). In that case, the Texas statute at issue prohibited motions for reconsideration of denials of state habeas petitions and seemingly provided no exceptions that would require an examination on the merits.See id. at 934. However, the U.S. Fifth Circuit recognized that the Texas courts routinely entertained such motions as a matter of practice. Therefore, the Court of Appeals [deferred] to Texas courts' application of state law." Id. at 935. Based upon this Courts' finding that (1) the "denial" of petitioner's writ application to the supreme court was taken on the merits under the court's constitutionally vested discretion, and (2) the clear line of cases, culminating in Emerson that purportedly defer to state court interpretations as a matter of comity, the Court finds that petitioner's writ application to the Louisiana Supreme Court was "properly filed" for federal habeas purposes.
Accordingly, petitioner's habeas clock is tolled for that period of time during which his writ application was pending before the supreme court. With the limitations period tolled for the nearly eight months that the application was pending in the Louisiana Supreme Court petitioner's application is timely under the AEDPA.
Equitable Tolling
Petitioner also argues that equitable tolling should act to render his application timely filed. The one year statute of limitations established by the AEDPA is not a jurisdictional bar and is subject to equitable tolling. Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999). However, the Fifth Circuit has set a high standard to warrant equitable tolling of a habeas petition, permitting such action only in "rare and exceptional circumstances." Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir.),cert. denied, 121 S.Ct. 622 (2000). As stated by the court in Rashidi v. American President Lines, 96 F.3d 124 (5th Cir. 1996), "[e]quitable 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." Id. at 128. Petitioner has not satisfied this high standard and is thus not entitled to equitable tolling. Accordingly,
IT IS ORDERED that the Report and Recommendation of the Magistrate Judge is is REJECTED, and this action is REMANDED to the Magistrate for further proceedings consistent with this order.