Butler v. Cain, 05-30689.
| Citation | 533 F.3d 314 |
| Decision Date | 25 June 2008 |
| Docket Number | No. 05-30689.,05-30689. |
| Parties | Charles T. BUTLER, Petitioner-Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Appeal from the United States District Court for the Western District of Louisiana.
Before DAVIS and SOUTHWICK, Circuit Judges, and CLARK, District Judge.*
Charles Butler appeals the dismissal of his federal habeas petition, which was found to be untimely. We affirm.
Butler is a Louisiana state prisoner. On May 23, 1997, he was convicted of second-degree murder and sentenced to life imprisonment. See State v. Butler, 714 So.2d 877, 882 (La.Ct.App.1998). His conviction was affirmed on June 24, 1998. Id. at 880. Butler did not file a writ application to the Louisiana Supreme Court ("direct review application") within the thirty days required by the state rule. He filed his (late) direct review application on August 5, 1998, which the Louisiana Supreme Court denied on January 8, 1999. See State v. Butler, 734 So.2d 1222 (La.1999). Butler did not file a petition for a writ of certiorari to the United States Supreme Court.
On October 29, 1999, Butler began state post-conviction proceedings. His application was denied by a state district court on September 14, 2000. The Court of Appeal denied review on January 25, 2001. The Louisiana Supreme Court on November 9, 2001, again denied a writ application from Butler, this time refusing to review the denial of post-conviction relief.
On December 10, 2001, Butler filed a federal habeas petition pursuant to 28 U.S.C. § 2254. The magistrate judge recommended that Butler's petition be dismissed as barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d). The analysis used was that Butler's August 5, 1998, direct review application to the Louisiana Supreme Court was not timely filed under Louisiana Supreme Court Rule X, § 5(a), which allows thirty days from the judgment of the appellate court before filing is due in the Supreme Court. Accordingly, Butler's conviction became final on July 24, 1998, and the one-year limitations period began to run on that date. Because Butler did not file his federal habeas petition within one year after July 24, 1998, the magistrate judge recommended that the petition be dismissed as time barred.
Butler filed objections, including that Louisiana Supreme Court Rule X, § 5(a) does not prohibit the filing of an out-of-time direct review application, and that he was entitled to tolling for the approximately five-month time period during which the application was pending before the Louisiana Supreme Court. The district court found Butler's federal petition to be time-barred.
Butler timely appealed. This court granted a certificate of appealability on the issue of whether the district court erred in dismissing Butler's Section 2254 petition as untimely.
This court reviews a district court decision denying a habeas petition on procedural grounds de novo. Johnson v. Cain, 215 F.3d 489, 494 (5th Cir.2000). There is a one-year period to bring a federal habeas petition under 28 U.S.C. § 2254. The "limitation period shall run from ... the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). However, "[t]he time during which a properly filed application for State post-conviction or other collateral review ... is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).
As he did in the district court, Butler argues here that the approximately five-month period during which his direct review application was before the Louisiana Supreme Court on direct appeal of his conviction (August 5, 1998 to January 8, 1999) should not count against his federal statute of limitations period. Butler argues that the limitations period did not start until after the Louisiana Supreme Court's January 1999 ruling, or alternatively, that he is entitled to equitable tolling for the five-month time period his application was pending. Whether this time period counts against Butler's one year is the essential question on appeal. If it does not count, Butler's Section 2254 petition was timely, and the district court's dismissal was improper. If the time period counts against Butler, his federal statute of limitations expired well before he even filed his state habeas petition. We now turn to that question.
The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on "the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir.2003). However, "[i]f the defendant stops the appeal process before that point," as Butler did here, "the conviction becomes final when the time for seeking further direct review in the state court expires." Id. at 694; see also Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir.2004) ().
Although federal, not state, law determines when a judgment is final for federal habeas purposes, a necessary part of the finality inquiry is determining whether the petitioner is still able to seek further direct review. See Foreman, 383 F.3d at 338-39. As a result, this court looks to state law in determining how long a prisoner has to file a direct appeal. See Causey v. Cain, 450 F.3d 601, 606 (5th Cir.2006); Roberts, 319 F.3d at 693. Louisiana Supreme Court Rule X, § 5(a) states that an application "to review a judgment of the court of appeal either after an appeal to that court ... 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." Butler's time for seeking further review of his state conviction expired when he did not within thirty days of the Louisiana Court of Appeal's June 24, 1998 decision, challenge that decision in the state Supreme Court.
Once the "expiration of the time for seeking" review of a state conviction has occurred, Section 2244(d)(1)(A) starts the one-year period for filing for a federal writ of habeas corpus. Because Butler's conviction became final on July 24, 1998, as we just explained, the one-year period for petitioning for federal habeas relief began on that date. A tolling provision appears in Section 2244(d)(2), which excludes the time "during which a properly filed application for State post-conviction or other collateral review ... is pending." Under that provision it is only state post-conviction relief proceedings that cause tolling.
The five-month period Butler asserts caused tolling was when his application was pending with the Louisiana Supreme Court on direct review. Therefore, Section 2244 tolling was not involved. The issue as to that period is whether his time for seeking review of his conviction expired at the beginning or at the end of those five months. We explained above why those five months were not part of his time for seeking direct review. When the Louisiana Supreme Court denied his late application on January 8, 1999, close to half of Butler's one-year period to bring a federal habeas petition by July 24, 1999, had passed. Butler did not file even his state habeas petition until October 29, 1999. It is true that Section 2244(d)(2) would cause tolling for the period during which the state habeas proceedings continued, but it was too late for a federal petition even before the state petition was filed. There was nothing to toll.
Butler argues that we have misunderstood the discretion that the Louisiana Supreme Court had to consider his late request on direct appeal on the merits.1 In his view, the January 1999, Supreme Court ruling was on the merits and not just a recognition that he had filed too late for review. Based on that premise, he argues that the one-year statute of limitations did not begin until the Louisiana Supreme Court's January 8, 1999, denial. We examine more closely the relevant Louisiana appellate procedures.
The Louisiana Supreme Court's 1999 order contains only one word: "denied." See State v. Butler, 734 So.2d 1222. Butler argues that a simple "denied" cannot be based on untimeliness, relying in part on our statement in 2004 that "when the denial of an application is based on untimeliness, Louisiana courts routinely and unmistakably indicate so in their opinions." Grillette v. Warden, 372 F.3d 765, 775 (5th Cir.2004). In Grillette, though, we were evaluating solely the practice of the Louisiana Court of Appeal under a rule applicable only to it and not to the state's Supreme Court; we cited only intermediate court opinions for our conclusion. See id. at 769-70. Conversely, in a pre-Grillette opinion, we found that a single-word denial order from the Louisiana Supreme Court likely indicated untimeliness and not a merits decision. Williams v. Cain, 217 F.3d 303, 304, 309 n. 7 (5th Cir.2000).
Butler also refers to numerous Louisiana Supreme Court orders which specifically stated that the application was "not considered, not timely filed." See, e.g., State v. Baker, 939 So.2d 1269 (La.2006); State...
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