Terry v. Dretke ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 16, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-20691
_____________________
CARLTON TERRY,
Petitioner - Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-5694
_________________________________________________________________
Before JOLLY, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Carlton Terry appeals the dismissal of his federal habeas
petition. We vacate the judgment of the district court dismissing
the petition as untimely and remand for consideration of the
applicability of equitable tolling in the light of evidence
presented by Terry.
A federal habeas petition must be filed within one year of the
date “on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2244(d)(1)(D). As this § 2254 petition
*
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this opinion should not be published and is not precedent except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.
was not filed within this period, Terry’s petition clearly would be
untimely absent equitable tolling.2
Section 2244(d)(2) makes clear that the pendency of a properly
filed application for state post-conviction relief or other
collateral review tolls the limitations period of § 2244. 28
U.S.C. § 2244(d)(2). However, state petitions filed after the
expiration of the limitations period do not toll the limitation of
§ 2244. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
Hence we arrive at the crux of this case. Calculating the one-year
limitation from the latest possible date,3 Terry would need to have
filed his state petition by July 9, 2003 in order for tolling to
apply and his § 2254 petition to be considered timely. Terry’s
state habeas petition was filed on August 12, 2003 -- nearly a
month after the limitation period expired. Consequently, the
district court granted the State’s motion to dismiss Terry’s
federal petition as untimely. Terry argues that the district
court erred in not applying the doctrine of equitable tolling.
2
While there are other avenues that can be applied to extend
the limitations period of § 2244, none are applicable here. Thus
Terry’s petition succeeds or fails based on the application of
equitable tolling.
3
We note that this Circuit has not definitively determined
the relevant date on which the clock begins for purposes of §
2244's one-year limitation period. However, we note that whether
the determinative date is the date the mandatory supervision was
revoked, in this case March 21, 2002, or the date of denial of the
motion to reopen, in this case July 9, 2002, without the
application of equitable tolling Terry’s petition is untimely. As
such the definitive date is not outcome determinative.
2
The limitation period of § 2244 is subject to equitable
tolling “in rare and exceptional circumstances.” Davis v. Johnson,
158 F.3d 806, 811 (5th Cir. 1998). This “applies principally where
the [defendant] . . . is prevented in some extraordinary way from
asserting his rights.” Coleman v. Johnson, 184 F.3d 398, 401-02
(5th Cir. 1999). The district court noted that Terry had waited
more than a year after the Texas Court of Criminal Appeals denied
his motion to reopen to seek federal habeas relief. Finding no
explanation for this delay, the district court held that the
application of equitable tolling was inappropriate.
The district court made its ruling on July 12, 2004, based on
the government’s motion without response from Terry. On July 15,
2004, the district court received a response from Terry.4 In this
response Terry explains that his state habeas petition was received
by the Texas trial court on January 29, 2003 -- well within the
limitation period of § 2244 -- and yet the Texas trial court failed
to file the petition until August 12. Terry argues that during
this period he actively sought to have the petition filed. This
argument is supported by evidence including copies of letters from
Terry to the Texas trial court regarding the status of his petition
and a writ of mandamus seeking to have the petition filed. Thus it
appears, at least according to the evidence presented by Terry,
4
Terry asserts he executed and delivered the reply to the
prison mail system on July 9, 2004, and that it was delayed there
due to various prison procedures.
3
that he diligently sought to make a timely filing of his state
petition and that failure to do so was no fault of his own. Terry
argues that the nearly eight-month delay between the time the
petition was received and the time the petition was filed
constitutes a circumstance deserving of equitable tolling.
As the district court was without the benefit of Terry’s
argument and its supporting evidence, we VACATE the judgment of the
district court dismissing Terry’s petition as untimely, and REMAND
for consideration of equitable tolling in the light of Terry’s
position and supporting evidence.
VACATED and REMANDED.
4