Brown v. Johnson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 99-20299
_______________________________
TY MICHAEL BROWN,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-98-CV-57)
_________________________________________________
November 14, 2000
Before KING, Chief Judge, WIENER, Circuit Judge, and BARBARA M.G.
LYNN,* District Judge.
PER CURIAM:**
Petitioner-Appellant Ty Michael Brown appeals the summary
judgment dismissal of his § 2254 habeas corpus petition as time-
barred. Brown argues that the elapse of ten months before he
*
District Judge of the Northern District of Texas, sitting
by designation.
**
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this opinion should not be published and is not precedent except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.
1
received notice that his direct appeal had been denied should
equitably toll the Antiterrorism and Effective Death Penalty Act’s
one-year time limit to file a habeas petition. Since the district
court dismissed Brown’s case, we have issued several relevant
opinions in light of which we conclude that Brown’s claim of
equitable tolling should not be dismissed on summary judgment. We
therefore reverse the district court’s dismissal and remand this
case for further proceedings to determine whether Brown is entitled
to equitable tolling of the subject limitations period.
I.
FACTS AND PROCEEDINGS
Because timing lies at the core of Brown’s appeal, we will
relate key dates in the progress of Brown’s case in greater than
usual detail.
Brown was convicted of capital murder and sentenced to life
imprisonment in June 1994. Two years later, the Texas Court of
Criminal Appeals reversed his conviction and remanded his case to
the First District Court of Appeals for consideration of a claim
that the evidence on which Brown was convicted was factually
insufficient. The First District affirmed the conviction on August
8, 1996.1 No further discretionary review was sought, and Brown’s
conviction became final on September 7, 1996. Therefore, absent
tolling, the deadline for Brown’s timely filing of a § 2254
1
Brown v. State, 1996 WL 444981 (Tex. App.-Houston [1st
Dist.] 1996) (No. 01-94-00644-CR) (unpublished).
2
application was September 7, 1997.2
On April 7, 1997, seven months after Brown’s conviction became
final, the Harris County clerk received a letter from the
imprisoned Brown inquiring into the status of his case. The
clerk’s office replied to Brown’s inquiry on July 21, 1997,
indicating a “Mandate of Affirmance” had issued on October 3, 1996.
Brown maintains that he wrote to the Harris County Clerk
because he had been “abandoned” by his appointed appellate counsel.
According to Brown, his lawyer did not respond to several letters
that Brown sent periodically from prison. Brown claims that he was
not notified when his conviction was affirmed on remand, nor even
that his attorney had appealed to the Texas Court of Criminal
Appeals. Respondent-Appellee does not rebut Brown’s allegations
beyond noting that for counsel “[t]o not inform a client of all
these proceedings, especially about the reversal and remand,
appears incredible.” Therefore, we assume that all facts are true
as Brown states them, and that, despite some efforts on his part,
more than ten months elapsed before Brown learned that his
conviction was final.3
After requesting and receiving a copy of the First District
Court of Appeals’ opinion, Brown filed a pro se state habeas
petition on October 2, 1997, nearly one month after the expiration
2
§ 2244 (d)(1)(A).
3
We note that the facts surrounding Brown’s actions are
verified in the record and do not rely solely on his assertions.
3
of the September 7 deadline for filing his § 2254 petition (but
within one year of the “mandate of affirmance” as indicated by the
Harris County clerk). His state habeas petition was denied on
November 26, 1997. Less than a month later, on December 22, 1997,
Brown filed a pro se § 2254 petition in federal district court,
which was dismissed on February 12, 1999, as time-barred under §
2244(d).
Brown filed a notice of appeal. Although it was three days
late, the district court found Brown’s tardiness to be the result
of excusable neglect and granted him an extension under 28 U.S.C.
§ 2107(c). This appeal followed, and we granted Brown a
certificate of appealability (COA) on the equitable tolling issue.
II
ANALYSIS
A. Equitable Tolling
Brown filed his federal habeas corpus petition on Dec. 22,
1997. Therefore, his petition is governed by the AEDPA. State
prisoners who file federal habeas corpus petitions under the AEDPA
must do so within the one-year limitation period codified in 28
U.S.C. § 2244(d):
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of –
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the
time for seeking such review....
(2) The time during which a properly filed application
for State post-conviction or other collateral review with
4
respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.
The time during which an application for state postconviction
relief or other collateral review is pending does not count toward
AEDPA’s one-year limitation period if, but only if, the state
application is “properly filed.”4 Brown did not file his state
habeas application until October 2, 1997, nearly a month after the
September 7 expiration of the one-year limitations period in which
he had to file for federal habeas relief. As that tardiness kept
his state application from being “properly filed,” his application
did not toll the running of the AEDPA’s limitations period.
The doctrine of equitable tolling “preserves a plaintiff’s
claims when strict application of the statute of limitations would
be inequitable.”5 We held in Davis v. Johnson that the AEDPA’s
one-year statute of limitations can be equitably tolled “in rare
and exceptional circumstances.”6 We remain at all times mindful of
the Supreme Court’s cautionary statements regarding dismissal of a
first federal habeas petition7 and its pronouncement that courts
4
§ 2244(d)(2).
5
Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998)
(citations omitted), cert. denied, 526 U.S. 1074 (1999).
6
Id. at 811.
7
Felder v. Johnson, 204 F.3d 168, 173 (5th Cir. 2000),
petition for cert. filed (U.S. May 8, 2000) (No. 99-10243) (quoting
Lonchar v. Thomas, 517 U.S. 314, 324 (1996) (“Dismissal of a first
federal habeas petition is a particularly serious matter, for that
dismissal denies the petitioner the protections of the Great Writ
5
“must be cautious not to apply the statute of limitations too
harshly.”8 We consider the facts of each case in deciding whether
to apply the doctrine of equitable tolling,9 and review the
district court’s decision to deny it for abuse of discretion.10
For equitable tolling to apply, the petitioner must not only
demonstrate “rare and exceptional circumstances,” but also must
“diligently pursue his § 2254 relief.”11 We will consider each of
these requirements in turn in deciding whether the district court
abused its discretion in finding that Brown could not meet them.
1. “Rare and Exceptional Circumstances”
We have not yet decided whether an inmate’s protracted lack of
notice that his conviction has become final should be grounds for
equitably tolling the AEDPA’s statute of limitations. In several
recent cases —— all of them decided subsequent to the district
court’s February 1999 decision in the instant case —— we considered
what facts do constitute the “rare and exceptional circumstances”
that justify equitably tolling the AEDPA’s statute of limitations.
Among these, the case most closely analogous to Brown’s is Phillips
entirely, risking injury to an important interest in human
liberty.”)).
8
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
9
Id.10
United States v. Patterson, 211 F.3d 927, 931 (5th Cir.
2000) (citing Fisher, 174 F.3d at 713).
11
Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999),
cert. denied, 120 S. Ct. 1564 (2000).
6
v. Donnelly,12 in which we held that a four-month delay between the
denial of an applicant’s state habeas petition and his actual
notification of the denial could qualify for equitable tolling.13
We based that decision on another recent case, Fisher v. Johnson,14
in which we stated in dicta that “[i]n the right circumstances, a
delay in receiving information might call for equitable tolling ——
such as if the prison did not obtain copies of AEDPA for months and
months, or if an essential piece of information was delayed near
the filing deadline.”15
In another recent case, Davis v. Johnson,16 we assumed without
deciding that the circumstances, including an alleged eleven-month
delay in the district court’s notification to appointed counsel of
his appointment, justified equitable tolling.17 Further, in United
States v. Patterson,18 we found equitable tolling warranted when the
district court apparently led the petitioner to believe he had an
12
216 F.3d 508 (5th Cir. 2000), reh’g granted in part on
other grounds, 223 F.3d 797 (5th Cir. 2000).
13
The Court remanded the case for a hearing on when the
petitioner first received notice of the denial. See id. at 511.
14
174 F.3d 710 (5th Cir. 1999).
15
Id. at 715.
16
Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998), cert.
denied, 526 U.S. 1074 (1999).
17
158 F.3d at 808 & n.2.
18
211 F.3d 927 (5th Cir. 2000).
7
extra year in which to file his petition.19
We see our cases that have denied equitable tolling, including
Fisher20 and Felder v. Johnson,21 as distinguishable from Brown’s
case, in that they generally concern a petitioner’s ignorance of
the law. In contrast, Brown’s uncontroverted complaint emphasizes
that his inability timely to learn the crucial fact that his
conviction had been affirmed on appeal and had become final
resulted from obstacles beyond his ability to control or remedy.
Should Brown prove the facts he has alleged, his appellate lawyer’s
neglect could very well be an extraordinary circumstance that kept
him from asserting his rights.22
2. Diligent Pursuit
Even when a petitioner demonstrates “rare and exceptional
circumstances” for missing the federal habeas deadline, he also
must have pursued his claims diligently to justify equitable
tolling of the statute of limitations. The district court found
that Brown failed in his obligation to monitor his lawsuit and keep
19
One of Brown’s complaints in this case is that the First
District Court of Appeals’s letter to him dating the Mandate of
Affirmance as Oct. 3, 1996, confused him as to the date his
conviction became final.
20
174 F.3d 710.
21
204 F.3d 168 (5th Cir. 2000).
22
See Rashidi v. American President Lines, 96 F.3d 124, 128
(5th Cir. 1996) (“Equitable 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.”).
8
himself apprised of the status of his litigation. The court cited
Jones v. Estelle23 as supporting the “implicit burden” to make
inquiries in a pro se habeas appeal by a state prisoner who was
previously represented by counsel.
The facts of Jones, however, are distinguishable from Brown’s
case. In Jones, the petitioner’s attorney filed objections to a
magistrate judge’s recommendation that habeas relief be denied, but
neither the attorney nor the petitioner inquired further into the
case for thirteen months after entry of judgment, thus missing a
30-day window in which to file a notice of appeal. We
distinguished the circumstances under consideration in Jones’s case
from those in Curry v. Wainwright,24 noting that “there is no
showing that the petitioner did not receive timely notice of
appeal. Additionally, petitioner was represented by counsel.”25
In contrast, Brown has shown that he did not receive timely notice
of appeal. Furthermore, although he apparently had been
23
693 F.2d 547, 549 (5th Cir. 1982).
24
416 F.2d 379 (5th Cir. 1969). The facts in Curry, in which
we accepted a late-filed notice of appeal, are more akin to Brown’s
case. Curry, a prisoner proceeding pro se, was not notified when
a final order denying his writ of habeas corpus was filed. Some
two months later, he wrote a letter to the court asking if a final
decision had been made; Curry filed a motion for a certificate of
probable cause two weeks after receiving an affirmative answer. We
held that the reasoning for our pre-existing rule that the period
for appeal did not begin to run until the appellant was notified of
his right to appeal “is stronger in the case sub judice, in which
the appellant did not even know that judgment had been entered
against him.” Id. at 380.
25
Jones, 693 F.2d at 549.
9
represented by counsel at least through his appeal to the Texas
Court of Criminal Appeals, Brown took the initiative to file his
habeas petition pro se once he learned that the AEDPA’s clock had
begun to run and that he was not then receiving counsel’s advice.
In Coleman v. Johnson,26 a recent case decided under the AEDPA,
we denied equitable tolling for an applicant who did not file his
federal habeas petition for approximately six months after he was
notified that his state postconviction application had been denied
and did not explain his delay. In comparison, Brown appears to
have acted with reasonable alacrity once he learned that his
conviction had become final. As alleged, most of the delay in
Brown’s case appears attributable to appellate counsel’s failure to
answer Brown’s inquiries regarding the status of his case. Brown
took the initiative by writing to the clerk’s office directly and
acting with due diligence to the information he received. The time
lag between his notification and state habeas filing was
approximately two-and-a-half months —— less than half the delay in
Coleman —— and is largely explained by Brown’s activity, including
requesting a copy of the First District Court opinion, plus the
unavoidable delays a prisoner encounters in trying to use the
prison library and communicate with the outside world. In light of
our recent opinions in Phillips, Fisher, and Felder —— opinions to
which the district court here was not privy —— we remand to the
26
184 F.3d 398 (5th Cir. 1999), cert. denied, 120 S. Ct. 1564(2000).
10
district court for reconsideration, possibly aided by an
evidentiary hearing, which may very well establish the existence of
rare and exceptional circumstances and diligent pursuit of relief
by Brown.
B. Notice of Appeal
Respondent-Appellee argues that we lack jurisdiction to hear
this appeal because Brown filed his notice of appeal three days
late. Respondent-Appellee grounds his argument in the claim that
the district court abused its discretion in granting Brown an
extension to file a timely notice of appeal based on excusable
neglect. Under Fed. R. App. P. 4(a)(5), a district court may grant
up to thirty additional days within which to file a notice of
appeal on a showing of excusable neglect or good cause.27
We have adopted the standard of excusable neglect articulated
by the Supreme Court in Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship.28 The Court there held that, in some
circumstances, neglect such as inadvertence, mistake, or
carelessness may be excused. Determination whether a party’s
neglect is excusable “is at bottom an equitable one, taking account
of all relevant circumstances surrounding the party’s omission.”29
27
See also 28 U.S.C. § 2107(c).
28
507 U.S. 380, 395 (1993); see also Halicki v. Louisiana
Casino Cruises, Inc., 151 F.3d 465, 468-69 (5th Cir. 1998), cert.
denied, 526 U.S. 1005 (1999).
29
Pioneer, 507 U.S. at 395.
11
In making the determination, the court must consider (1) the danger
of prejudice to the nonmovant; (2) the length of the delay and its
potential impact on judicial proceedings; (3) the reason for the
delay, including whether it was within the reasonable control of
the movant; and (4) whether the movant acted in good faith.30
The first two Pioneer factors weigh in favor of a finding of
excusable neglect. The risk of prejudice to Respondent-Appellee
should the extension be granted is minimal, and he has asserted no
actual prejudice. The length of delay was de minimis (three days),
and would have little or no effect on judicial proceedings. The
fourth Pioneer factor, whether the movant acted in good faith, also
weighs in favor of a finding of excusable neglect. There is no
indication of bad faith on Brown’s part.31
The third Pioneer factor, the reason for the delay, does not
weigh heavily against a finding of excusable neglect. Brown
asserts that, albeit erroneously, he believed that he had 30 days
from receipt of the final judgment, rather than 30 days from its
entry, in which to file a notice of appeal. We have previously
found that writing the wrong docket number on a notice of appeal
was excusable neglect.32 In Halicki, we noted that some
30
Id.; Halicki, 151 F.3d at 468.
31
Indeed, within what he believed to be the 30-day time
limit, Brown mistakenly prepared and sent to the Fifth Circuit a
nine-page “request for certificate of appealability” in lieu of a
notice of appeal.
32
Marshall v. Lancarte, Inc., 632 F.2d 1196 (5th Cir. 1980).
12
misinterpretations of the federal rules may qualify as excusable
neglect but held that the attorney’s asserted misinterpretation of
an unambiguous, well-settled rule affecting the date for filing a
notice of appeal was inexcusable.33 Unlike Halicki, Brown was not
represented by counsel.
Most of the Pioneer factors weigh in favor of a finding of
excusable neglect, and the reason for the delay does not weigh
heavily against such a finding. Respondent-Appellee has not shown
that the district court abused its discretion by granting Brown’s
motion to extend the time to file his notice of appeal by three
days. Therefore, we find no error in the district court’s grant of
an extension of time for Brown to file a notice of appeal.
III.
CONCLUSION
If Brown can prove the circumstances he has alleged, his case
may be the rare and exceptional one justifying equitable tolling of
the AEDPA’s one-year limit. Therefore, we reverse the district
court’s grant of summary judgment and remand for further
consideration consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
33
Halicki, 151 F.3d at 469-70.
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