Williams v. Cain ( 2000 )

REVISED JULY 6, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30759
ELMORE J. WILLIAMS,
Petitioner - Appellant,
VERSUS
BURL CAIN,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
June 29, 2000
Before WIENER and STEWART, Circuit Judges, and ROSENTHAL, District
Judge.*
ROSENTHAL, District Judge:
Elmore Williams was convicted of second degree murder in
Louisiana state court in 1989. He received a life sentence,
without the possibility of parole. His direct appeals concluded
without success in 1991. He appeals from the district court’s
dismissal of his petition under 28 U.S.C. § 2254 as time-barred.
*
District Judge of the Southern District of Texas, sitting
by designation.
I. BACKGROUND
Louisiana procedure requires a prisoner seeking post-
conviction relief to make an initial application to the trial
court. See LA. CODE CRIM. PROC. ANN. art. 930.6A. The law in effect
during the relevant time required a prisoner to file an application
for post-conviction relief within three years after the judgment of
conviction and sentence become final. See LA. CODE CRIM. PROC. ANN.
art. 930.8A. (This period has since been reduced to two years).
Williams filed a timely application for post-conviction relief
before the trial court. The trial court denied Williams’s
application without a hearing. Under Louisiana law, Williams could
not appeal from the trial court’s denial of his application for
post-conviction relief. Louisiana law requires an unsuccessful
applicant to seek review through an application for a supervisory
writ. Williams filed his application for a supervisory writ before
the intermediate state appellate court. That court ordered the
trial court to conduct an evidentiary hearing on Williams’s
ineffective assistance of counsel claim. The trial court held the
hearing and again denied relief. On March 10, 1994, the appellate
court denied Williams’s application for a supervisory writ.
Under Louisiana Supreme Court Rule X, § 5(a), Williams had
thirty days to file his application for a supervisory writ to the
Louisiana Supreme Court. That rule provides as follows:
An application seeking to review a judgment of the court
of appeal either after an appeal to that court, or after
that court has granted relief on an application for
supervisory writs (but not when the court has merely
granted an application for purposes of further
consideration), 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;
however, if a timely application for rehearing has been
filed in the court of appeal in those instances where a
2
rehearing is allowed, the application shall be made
within thirty days of the mailing of the notice of denial
of rehearing or the judgment on rehearing. No extension
of time therefor will be granted.
Williams did not file his application with the Louisiana
Supreme Court until May 1995, almost fourteen months after the
appellate court denied his application for a supervisory writ. The
Supreme Court did not request briefs from the State and no motions
or briefs are in the record. Almost two years later, in April
1997, the Louisiana Supreme Court rejected Williams’s application
with one word: “DENIED.” The Court did not state whether it was
rejecting the application as untimely filed or whether it had
considered the application and rejected it on a substantive ground.
Williams filed this federal petition under section 2254 in
July 1997. Williams did not file this petition within the one-year
grace period allowed by the Antiterrorism and Effective Death
Penalty Act of 1996, § 101, 28 U.S.C. § 2244(d)(1) (“AEDPA”), which
expired on April 24, 1997.1 Williams contends that the tolling
provision of section 2244(d)(2)applies, suspending the one-year
filing period until the Louisiana Supreme Court denied his
application for a supervisory writ. If Williams is correct, his
federal petition is timely. Absent tolling, the petition is time-
barred.
The district court held that Williams’s application for a
supervisory writ did not constitute a “properly filed application
for State post-conviction . . . review” under 28 U.S.C. §
2244(d)(2) because Williams did not comply with the thirty-day
1
Because Williams’s conviction became final before the
enactment of the AEDPA, Williams had one year following the
effective date of the Act, April 24, 1996, in which to file a
federal petition for a writ of habeas corpus. See Villegas v.
Johnson, 184 F.3d 467, 469 (5th Cir. 1999).
3
filing requirement of Louisiana Supreme Court Rule X, § 5(a). This
court granted Williams’s request for a certificate of appealability
(“COA”) on the issue of whether, in light of Villegas v. Johnson,
184 F.3d 467 (5th Cir. 1999), the Louisiana Supreme Court rule
“sets forth the type of procedural filing requirement that would
render a state application for post-conviction relief dismissed on
that basis improperly filed for purposes of § 2244(d).”
Williams filed a brief that addressed the merits of his
petition, but failed to address the tolling issue. Respondent’s
brief is limited to the issue of whether Williams’s application to
the Louisiana Supreme Court, filed long after the time allowed by
that Court’s rules, was a “properly filed” application under
section 2244(d)(2) so as to toll limitations.
II. THE ISSUE OF WAIVER
Williams clearly, and successfully, raised the tolling issue
before this court in his application for a certificate of
appealability. His failure to reassert the same issue in the post-
COA briefs does not amount to a waiver of that issue.
In Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993), this
court considered a pro se appellant’s request for the adoption of
legal and factual arguments previously presented in his filed
objections to a magistrate judge's report and in various state
court pleadings. The Fifth Circuit held that appellant had
abandoned those arguments by failing to repeat them in the body of
his appellate brief. The court cited Rule 28(a)(4) of the Federal
Rules of Appellate Procedure, which required an appellant to state
the reasons that entitled the appellant to the requested relief
“with citation to the authorities, statutes and parts of the record
4
relied on.”2 The court stated: “Although we liberally construe
the briefs of pro se appellants, we also require that arguments
must be briefed to be preserved.” Yohey, 985 F.2d at 224–225. The
court also noted that the incorporation of arguments from other
pleadings would lengthen a brief already at the fifty-page limit.
The court therefore limited its consideration to the issues
presented and argued in the brief.
In this case, Williams timely raised and briefed the tolling
issue in his request for a COA. In the order granting the COA,
the court stated that if a prisoner makes a credible showing that
the district court erred in dismissing a habeas corpus application
on a procedural basis, the appellate court would then consider
whether the prisoner had made a substantial showing of the denial
of a constitutional right on the underlying claims. The order
concluded by stating that Williams had “made a credible showing
that the district court may have erred in dismissing his
application as time barred.” The order was arguably misleading to
a pro se litigant. In the absence of explicit direction to rebrief
the issue of the time bar, Williams proceeded to brief the merits.
Under these circumstances, it is inappropriate to deem the tolling
issue waived by Williams’s failure again to brief that issue.
III. THE ISSUE OF TOLLING
Section 2244(d)(2) tolls the limitation provision for filing
a section 2254 petition during the pendency of certain state court
proceedings:
2
Rule 28 has since been amended. The corresponding provision
is Rule 28(a)(9)(A), which provides that an appellant’s brief must
contain “appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the
appellant relies.”
5
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.
28 U.S.C. § 2244(d)(2). The issue in this case is when Williams
ceased to have a “properly filed application for State post-
conviction . . . review . . . pending.” Williams argues that he
had a properly filed application pending until the Louisiana
Supreme Court denied his application for a supervisory writ. The
respondent contends that Williams ceased to have a properly filed
application pending when he failed to comply with the time limit of
Louisiana Supreme Court Rule X, § 5(a).3
This question requires an examination of the meaning of the
phrases “properly filed” and “pending” in section 2244(d)(2).
A. The Meaning of “Properly Filed”
This court has addressed the meaning of “properly filed” in
Villegas v. Johnson, 184 F.3d 467 (5th Cir. 1999), and Smith v.
Ward, 209 F.3d 383 (5th Cir. 2000). This court had not issued
either opinion when the district court ruled. In Villegas, the
court held that a Texas prisoner’s state habeas application was
“properly filed” within the meaning of section 2244(d)(2), despite
the fact that the state court had dismissed the application under
3
The order issuing the COA framed the issue as whether an
application for a supervisory writ dismissed as untimely filed
under Louisiana Supreme Court Rule X, § 5(a) is a “properly filed
application” under section 2244(d)(2). However, as the district
court pointed out, the Louisiana Supreme Court’s decision did not
expressly state that it dismissed Williams’s application as time-
barred under Rule X, § 5(a). The district court inferred that the
Louisiana Supreme Court had not exercised its discretionary
supervisory jurisdiction to consider Williams’s case on the merits,
but acknowledged that the Court did not specifically state whether
it dismissed the writ application as untimely filed or on a
substantive ground.
6
a Texas statute that precluded consideration of a successive habeas
application unless the application satisfied one of several
specified exceptions. This court defined a “properly filed” state
application as one that “conforms with a state’s applicable
procedural filing requirements,” Villegas, 184 F.3d at 470, and
defined “procedural filing requirements” 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.” Id. at
470 n.2.
This court observed that under the Texas statute, although the
state court would not “automatically consider the merits of claims
raised in a successive petition, [the state habeas court would]
accept the petition for filing and review the application to
determine whether the statutory exceptions [we]re met.” Id. at 472
n. 4. If the review showed that none of the exceptions applied,
the state court would then dismiss the petition. However, because
the statute did not prohibit the filing of a successive petition,
but merely limited the availability of relief, the statute did not
impose a “procedural filing requirement” that would make an
application improperly filed for the purpose of section 2244(d)(2).
See id. at 472.
In Smith v. Ward, 209 F.3d 383 (5th Cir. 2000), the court
applied Villegas to a prisoner’s efforts to obtain post-conviction
relief in the Louisiana courts. The Louisiana state court had
dismissed the prisoner’s application for post-conviction relief as
time-barred because the prisoner did not file in the trial court
within three years from the date the judgment of conviction and
sentence became final, as required by LA. CODE CRIM. PROC. ANN. art.
930.8A. The Fifth Circuit held that the Louisiana state court’s
dismissal of the application on the ground that it failed to meet
7
this time limitation did not make the application “improperly
filed” for section 2244(d)(2) purposes. As with the Texas
successive writ statute, Article 930.8A included a number of
exceptions allowing a court to consider an application for post-
conviction relief even if filed after the presumptive time limit.
Under the article, a Louisiana state court could consider the
merits of a prisoner’s untimely application if (1) “[t]he
application allege[d], and the prisoner prove[d] or the state
admit[ted], that the underlying facts were not known to the
petitioner or his attorney,” or (2) the application raised a claim
“based on a final ruling of an appellate court establishing a
theretofore unknown interpretation of constitutional law and
petitioner establishe[d] that this interpretation [was]
retroactively applicable to his case, and the petition [was] filed
within one year of the finality of such ruling.” LA. CODE CRIM. PROC.
ANN. art. 930.8A.
This court reasoned:
On its face, article 930.8A is arguably a time-based
procedural filing requirement of the sort which, under
Villegas, would render an application dismissed on that
basis as having been not “properly filed.” On the other
hand, article 930.8A, like the Texas successive writ
statute at issue in Villegas, does not impose an absolute
bar to filing; instead, it limits the state court's
ability to grant relief.
Under article 930.8A, Louisiana courts will accept a
prisoner's application for filing and review it to
determine whether any of the statutory exceptions to
untimely filing are applicable. If the untimely
application does not fit within an exception, the state
court will dismiss it.
Because the procedure established by article 930.8A is
virtually identical to that under TEX. CODE CRIM. P. art.
11.07, § 4, we conclude that, consistent with Villegas,
Smith's state application, although ultimately determined
by the state court to be time-barred, nevertheless was
8
"properly filed" within the meaning of § 2244(d)(2).
Accordingly, the one-year period for seeking federal
habeas relief was tolled during the pendency of that
state application, making timely the federal application
filed in January 1998.
Smith, 209 F.3d at 384–385 (citations omitted).
Villegas and Smith emphasized that the phrase “properly filed”
required compliance with “procedural filing requirements,” such as
“rules governing notice and the time and place of filing [as well
as] requirement[s] that the petitioner obtain judicial
authorization for the filing,” Villegas, 184 F.3d at 470 n. 2, but
did not include compliance with more complex state procedural
doctrines, such as those relating to successive petitions. See id.
at 470 (stating a reluctance to go beyond the plain meaning of
“properly filed” and emphasizing the interests of comity and
exhaustion served by a narrow construction of section 2244(d)(2)).
Although the circuits disagree on aspects of the application
of section 2244(d)(2),4 courts have consistently held that an
4
This court has adopted the “narrow” view of the phrase
“properly filed application” in section 2244(d)(2), construing the
phrase to require that the state post-conviction motion or petition
comply with rules governing the time and place of filing. The
majority of circuits follow this approach. See, e.g., Bennett v.
Artuz, 199 F.3d 116 (2d Cir. 1999) (rejecting cases holding that a
state petition had to be nonfrivolous in order to be properly filed
for the purpose of tolling the AEDPA statute of limitations);
Hoggro v. Boone, 150 F.3d 1223, 1226, n. 4 (10th Cir. 1998); Lovasz
v. Vaughn, 134 F.3d 146, 148–49 (3d Cir. 1998); Lucas v. Carter,
46 F. Supp. 2d 709, 711–12 (N.D. Ohio 1999) (holding that a
petition dismissed by the state court on the basis of res judicata
was “properly filed”). Other courts have taken a broader view.
See, e.g., Tinker v. Hanks, 172 F.3d 990, 991 (7th Cir. 1999)
(holding that an application for leave to file a successive state
habeas petition was not a “properly filed application” under
2254(d)(2)), petition for cert. filed (Dec. 27, 1999) (No. 99-
7682); Dictado v. Ducharme, 189 F.3d 889, 892 (9th Cir. 1999)
(reasoning that the policy of deferring to state courts weighs in
favor of requiring prisoners to comply with the full range of state
9
application is not “properly filed” if it fails to meet a filing
deadline clearly established in state law. See Hoggro, 150 F.3d at
1226, n.4; Lovasz, 134 F.3d at 148–49; Webster v. Moore, 199 F.3d
1256, 1258–59 (11th Cir. 2000), petition for cert. filed (Mar. 20,
2000) (No. 99-8819); United States ex rel. Morgan v. Gilmore, 26 F.
Supp.2d 1035, 1038 (N.D. Ill. 1998). These courts have held that
the plain language of section 2244(d)(2) requires a properly-filed
state application to meet clear time limitations. These courts
also note that respect for state filing deadlines is consistent
with the concern for comity that animates many provisions of the
AEDPA, including the requirement that a prisoner exhaust available
state remedies before pursuing federal habeas relief, 28 U.S.C. §
2254(b), and the respect afforded state adjudications of
constitutional claims on federal habeas review,
28 U.S.C.§ 2254(d)–(e). See, e.g., Webster, 199 F.3d at 1258–59.
A straightforward application of the above cases to the
thirty-day time limit established by Louisiana Supreme Court Rule
X, § 5(a) supports the conclusion that Williams’s “application” for
post-conviction relief in the Louisiana courts ceased to be
“properly filed” for the purpose of section 2244 (d)(2) when he
failed to file his application for a supervisory writ with the
Louisiana Supreme Court within the time allowed by Rule X, § 5(a).
Rule X, § 5(a) is a procedural requirement governing the time of
filing. The rule sets out no specific exceptions to, or exclusions
from, this requirement. Indeed, the rule forbids any extension of
the thirty-day limit. In these important ways, Rule X, § 5(a)
differs from the statutes at issue in Villegas and Smith.
procedural rules, including the rules regarding successive
petitions).
10
The primary argument on the other side, noted by the district
court, is the presence of an unrestricted residual discretion in
the Louisiana Supreme Court to consider any request for a
supervisory or remedial writ. See LA. CONST. ANN. Art. 5, §
5(A)(“The supreme court has general supervisory jurisdiction over
all other courts.”); Williams v. Cain, 66 F. Supp.2d at 817.5 The
district court did not examine whether the Louisiana Supreme
Court’s general supervisory jurisdiction was in itself sufficient
under Villegas and Smith to make Williams’s application “properly
5
The district court cited several cases illustrating the
Louisiana Supreme Court’s exercise of discretion to review claims
under its supervisory jurisdiction. However, none of the cases
involved the Supreme Court’s use of its discretion to consider the
merits of a petition for post-conviction relief that was not filed
within the thirty-day period established by Louisiana Supreme Court
Rule X, § 5(a). Instead, the cases involved an approach that the
Louisiana Supreme Court followed for a time, but later rejected, to
address a persistent problem under the Louisiana post-conviction
procedures. Under Louisiana procedure, a post-conviction
application is initially made to the trial court. See LA. CODE CRIM.
PROC. ANN. 930.6A. There is no right of appeal from a trial court’s
denial of a petition for post-conviction relief. See id. The
trial court’s denial is subject to review only under the
supervisory jurisdiction of the Louisiana courts of appeals, and
then the Louisiana Supreme Court, within each court’s discretion.
See id. For a time, the Louisiana Supreme Court, in the interest of
judicial economy, routinely exercised its discretion to consider
non-appealable matters that prisoners had incorrectly filed as
appeals as if those matters had been properly filed as applications
for writs of review. However, by an En Banc Order issued December
9, 1994 and effective January 1, 1995, the Louisiana Supreme Court
rejected that approach as “contrary to [the] jurisdictional grant
and discontinued the procedure,” instead dismissing the improperly
filed appeals for lack of appellate jurisdiction. See State v.
Robinson, 97-686, 707 So.2d 81 (La.App. 5th Cir. 1/14/98); State v.
Polkey, 95-564, 669 So.2d 2, 3 (La.App. 5th Cir. 1/17/96).
11
filed,” despite its violation of the thirty-day deadline set in the
Louisiana Supreme Court’s rule.6
By comparison to the statutory exceptions to time limits at
issue in Villegas and Smith, the general discretion in the
Louisiana Supreme Court to accept a supervisory writ application
functions far differently for the purpose of section 2244(d)(2).
As noted, Villegas and Smith involved state post-conviction
statutes that provided express exceptions to the filing deadlines
they contained. This circuit held that because the statutes
specifically provided grounds that, if alleged and proved, required
a state habeas court to consider an otherwise untimely application,
those statutes did not bar a state court’s consideration of the
application, but only placed limitations on such consideration. An
application dismissed as untimely under those state statutes would
still be a “properly filed application” that would toll limitations
under AEDPA. By contrast, there is no express provision in the
Louisiana Supreme Court Rule or the Louisiana post-conviction
statutes that would permit a petitioner to avoid the thirty-day
filing deadline. Rule X, § 5(a) expressly prohibits any extension
6
The district court instead held that because there was no
evidence that the Supreme Court had exercised its discretion to
consider Williams’s untimely application on the merits, the
application was not “properly filed” for the purpose of section
2244(d)(2). Noting that the Louisiana Supreme Court never issued
a briefing order for the state to respond to Williams’s application
and denied the application by a one-word judgment, the district
court found that there was no indication that the Louisiana Supreme
Court had accepted supervisory jurisdiction over the untimely-filed
application. The court noted that the Louisiana Supreme Court
frequently does expressly dismiss applications for supervisory
writs as untimely filed. Nonetheless, the district court concluded
that the absence of such an express statement in this case was not
sufficient to convert an untimely and unsuccessful application into
one that would be considered timely filed for the purpose of
tolling limitations under AEDPA.
12
of the thirty-day period. There is no requirement in the rule that
the Louisiana Supreme Court consider an untimely application for a
supervisory writ upon a petitioner’s allegation and proof of
certain facts defined by statute.
Under the statutes at issue in Villegas and Smith, the state
court had to make a determination on issues related to the
substance of the state applications to determine whether the
applications fell within a clearly-defined exception to the time
requirements. In this case, by contrast, the question whether a
state application to the Louisiana Supreme Court for a supervisory
writ is timely filed under Rule X, § 5(a) requires no examination
relating to the merits. There was no question that the state
application filed here was untimely under state law. The Louisiana
Supreme Court did not need to make any determination related to the
merits to reach this conclusion.
The Louisiana Supreme Court Rule is much more similar to the
post-conviction filing deadlines at issue in Webster, Hoggro, and
Morgan, which courts consistently require a petition to satisfy in
order to be “properly filed,” than it is to the deadlines
established by the more complex state procedural statutes at issue
in Villegas and Smith. Those statutes specify exceptions that
might, in any case, make an otherwise untimely application
“properly filed” and require an examination into whether those
exceptions are present to determine whether an application is
timely. No such exceptions and no such examination are
contemplated by the time requirement set by the Louisiana Supreme
Court Rule X, § 5(a). Compliance with that requirement is
necessary for a Louisiana prisoner’s “application” for post-
13
conviction relief to remain “properly filed” under section
2244(d)(2).7
7
The district court suggested that if the Louisiana Supreme
Court had exercised its discretion to consider Williams’s
application on the merits, the one-year limitation period would
have been tolled while that court considered the application.
However, as the district court observed, the record disclosed no
evidence that the Louisiana Supreme Court considered Williams’s
claim on the merits, instead of dismissing it as untimely. As
discussed below, this court does not reach the issue of whether a
decision by the Louisiana Supreme Court to consider on the merits
an application for a supervisory writ filed in violation of Rule X,
§ 5(a) could make the application “properly filed” for the purpose
of tolling the federal limitations period. See infra, n. 8.
14
B. THE MEANING OF “PENDING”
Williams’s argument for tolling also fails because his
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. Some circuits
have addressed the issue of when a prisoner’s state application for
post-conviction relief ceases to be “pending.” The Ninth Circuit
has held that section 2244(d)(2) tolls limitations for the period
“during which a state prisoner is attempting, through proper use of
state court procedures, to exhaust state court remedies with regard
to a particular post-conviction application.” Nino v. Galaza, 183
F.3d 1003, 1005 (9th Cir. 1999) (quoting Barnett v. Lemaster, 167
F.3d 1321, 1323 (10th cir. 1999)), cert. denied, 120 S. Ct. 1846(2000). The Second Circuit has stated that “[a] state-court
petition [for post-conviction review] is ‘pending’ from the time it
is first filed until finally disposed of and further appellate
review is unavailable under the particular state’s procedures.”
Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), cert. denied,
120 S. Ct. 1669 (2000). The Fourth Circuit holds that “the entire
period of state post-conviction proceedings, from initial filing to
final disposition by the highest state court (whether decision on
the merits, denial of certiorari, or expiration of the period of
time to seek further appellate review), is tolled from the
limitations period for federal habeas petitioners . . . .” Taylor
v. Lee, 186 F.3d 557, 561 (4th Cir. 1999), cert. denied, 120 S. Ct.
1262 (2000).
Of the other circuits courts that have considered the issue,
the Third Circuit addressed facts most similar to those presented
here. In Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000), the
15
prisoner had failed timely to file a petition for allowance of
appeal with the Pennsylvania Supreme Court after lower Pennsylvania
courts denied him post-conviction relief. Several months after the
deadline for filing with the Pennsylvania Supreme Court had passed,
the prisoner filed a “Motion for Permission to File Petition for
Allowance of Appeal Nunc Pro Tunc” with that court. The
Pennsylvania Supreme Court later denied that motion.
In determining whether the prisoner timely filed his section
2254 petition in federal court, the Third Circuit considered when
the prisoner’s state application for post-conviction relief ceased
to be pending for the purpose of section 2244(d)(2). The court
adopted the dictionary definition of the word “pending,” under
which “[a]n action or suit is pending from its inception until the
rendition of final judgment.” Id. at 420 (quoting BLACK’S LAW
DICTIONARY, 6th ed., p. 1134 (1990)). The court held that the
prisoner’s state application, properly filed with the trial court,
ceased to be pending when the time expired for the prisoner to file
a petition for allowance of appeal with the Pennsylvania Supreme
Court under its procedural rules.
In this case, Williams failed to comply with Louisiana Supreme
Court Rule X, § 5(a) by filing an application for a supervisory
writ with that court within thirty days after the intermediate
state appellate court denied his application for a supervisory writ
from the trial court’s denial of his application for post-
conviction review. Rule X, § 5(a) expressly prohibits any
extension of the thirty-day period. The district court correctly
observed that no evidence suggested that the Louisiana Supreme
Court considered Williams’s untimely application for a supervisory
writ on the merits.
16
Once Williams failed to comply with Louisiana Supreme Court
Rule X, § 5(a), “further appellate review [was] unavailable under
[Louisiana’s] procedures.” Bennett, 199 F.3d at 120.8 His
application for post-conviction relief from the Louisiana courts
ceased to be pending long before the one-year grace period of the
AEDPA began to run.9 No tolling applies. The period for filing a
8
This court need not reach the issue of the status of
Williams’s application under section 2244(d)(2) had the Louisiana
Supreme Court considered the untimely application and denied it on
substantive grounds. Compare Neal v. Ahitow, 8 F. Supp.2d 1117,
1120 (C.D. Ill. 1998) (“[A]lthough Petitioner allowed over nine
months to elapse after the Illinois Appellate Court reviewed his
post-conviction relief petition before he sought leave to [file an
untimely] appeal [with] the Illinois Supreme Court, his petition
was still ‘pending’ within the meaning of section 2244(d)(2) since
the Illinois Supreme Court ultimately granted Petitioner leave to
appeal.”); with United States ex rel. Fernandez v. Washington, 1999
WL 688771, *3 (N.D. Ill. 1999) (unpublished disposition) (“[A]
petitioner’s untimely petition for leave to appeal to the Illinois
Supreme Court was not transformed into a ‘properly filed’
application for post-conviction relief simply because the Illinois
Supreme Court ultimately permitted the late petition.”) (construing
United States ex rel. Morgan v. Gilmore, 26 F. Supp. 2d 1035, 1038
(N.D. Ill. 1998)). The difference turns in large part on whether
the phrase “properly filed” requires compliance with procedural
filing requirements imposed at the initial level of state court
review, after which time the tolling effect of section 2244(d)(2)
continues for as long as the prisoner’s application remains
“pending” in the state courts, or whether “properly filed” requires
compliance with procedural filing requirements imposed at all
levels of review in the state courts. See Swartz, 204 F.3d at 421,
n. 3. This circuit has not addressed this question.
9
This court need not decide whether Williams’s
application in the Louisiana courts ceased to be pending when the
intermediate appellate court denied his application for a
supervisory writ or thirty days later, when his time for filing an
application for a supervisory writ with the Louisiana Supreme Court
expired under Rule X, § 5(a). See, e.g., Swartz, 204 F.3d at422–23 (holding that when the prisoner did not timely appeal to the
state’s highest court, a state application for post-conviction
review ceased to be pending when the time for taking such an appeal
expired under state law).
17
section 2254 petition expired on April 24, 1997. Williams’s
federal petition was untimely.
IV. CONCLUSION
Williams’s application for supervisory review missed the
Louisiana Supreme Court filing deadline by more than fourteen
months. Williams ceased to have a “properly filed application” for
post-conviction relief pending in the Louisiana courts when he
failed timely to apply to the Louisiana Supreme Court. Williams’s
federal petition is time-barred. The judgment of the district
court is
AFFIRMED.
18