Critchley v. Thaler

• Decision Date: 21 October 2009
• Docket Number: No. 07-50208.,07-50208.
• Citation: 586 F.3d 318
• Parties: Philip Robert CRITCHLEY, Jr., Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

586 F.3d 318

Philip Robert CRITCHLEY, Jr., Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 07-50208.

United States Court of Appeals, Fifth Circuit.

October 21, 2009.

Philip Robert Critchley, Jr., Cuero, TX, pro se.

Matthew Dennis Ottoway, S. Michael Bozarth, Asst. Atty. Gen., Austin, TX, for Respondents-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before KING, DAVIS and BENAVIDES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

State prisoner Phillip Robert Critchley, Jr. appeals the denial of his 28 U.S.C. § 2254 petition as untimely. This court granted Critchley a certificate of appealability to determine whether he was entitled to relief under 28 U.S.C. § 2244(d)(1)(B), which tolls the AEDPA limitations period until "the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action." We conclude that the Hays County District Clerk's office's apparent practice of mishandling prisoner filings constitutes a state impediment under 28 U.S.C. § 2244(d)(1)(B) which tolled the AEDPA limitations period applicable to Critchley. Accordingly, his § 2254 petition was timely and we reverse.

I.

In November 2000, Phillip Robert Critchley, Jr., Texas prisoner # 1021494, was convicted in Texas state court of sexual assault and sentenced to 20 years in prison. In March 2006, Critchley filed a 28 U.S.C. § 2254 petition in the district court wherein he raised numerous claims, including ineffective assistance, insufficient evidence, double jeopardy, and prosecutorial misconduct.

At the same time he filed his § 2254 petition, Critchley filed an "amended motion" for leave to proceed under § 2254 in which he asserted that his § 2254 petition was not untimely because the State had interfered with his attempts to file a state habeas application. Critchley asserted that he initially mailed his state habeas application on July 18, 2003, but that the application was not filed in the Hays County District Clerk's office.¹ Critchley also asserted that he attempted to refile the application on February 20, 2004. After being notified by letter dated July 7, 2004 that neither application was on file with the Hays County District Court, he submitted an amended application that was received in December 2004, but not filed by Hays County until April 2005. Critchley asserted that because the State had interfered with his attempts to file his state habeas application, he was entitled to either equitable tolling or statutory tolling under 28 U.S.C. § 2244(d)(1)(B).

The magistrate judge issued a report recommending that Critchley's petition be denied as untimely. The magistrate judge gave Critchley "the benefit of the doubt" on his assertion that he mailed a state habeas application in July 2003, and determined that it was "entirely possible" that Critchley had mailed the application. The record contains evidence that Critchley submitted packages to the prison mailroom for mailing to the District Clerk that were actually mailed on July 19, 2003 and February 20, 2004. The magistrate judge noted that he had presided over "several other cases in which state habeas petitioners have similarly had their pleadings not filed by the Hays County District Clerk." The magistrate judge stated further that it was not clear "if the Hays County District Clerk simply discards state prisoners' mail, ignores it, loses it, or is so disorganized that filings are lost before they reach the file. Whatever the case, because of its experience with the Hays County District Clerk's office from other cases, the Court finds it entirely possible that Petitioner did in fact mail two separate applications for habeas relief, neither of which were filed by the clerk."

The magistrate judge determined that Critchley was not entitled to equitable tolling, however, because he had shown a lack of diligence in pursuing relief based on the amount of time that passed between his attempted filings. This ruling was based on the fact that Critchley received notice by letter dated July 7, 2004 that his state habeas petition had not been filed with the state court. His next attempt to file did not occur until December 3, 2004. The magistrate judge did not address whether Critchley was entitled to statutory tolling under § 2244(d)(1)(B).

Critchley filed objections to the report and recommendation wherein he again argued that he was entitled to tolling under § 2244(d)(1)(B). Critchley also argued that either his prison unit mailroom had not sent the applications, or the Hays County District Clerk had not filed them, but that in either case, the State had created an impediment that prevented him from filing his state application, citing Egerton v. Cockrell, 334 F.3d 433 (5th Cir.2003).

The district court overruled Critchley's objections and denied the petition as untimely. The court made note of the magistrate judge's statement that it was "entirely possible" that the Hays County District Clerk's Office failed to file Critchley's first two habeas applications. The court determined, however, that such did not excuse Critchley's failure to diligently pursue his claims and that, therefore, the magistrate judge correctly rejected Critchley's claim for equitable tolling. Like the magistrate judge, the district court did not, however, address Critchley's argument that he was entitled to statutory tolling under § 2244(d)(1)(B).

Following the denial of certificate of appealability (COA) by the district court, Critchley moved for a COA in this court. We granted a COA solely "on the issue whether Critchley was entitled to relief under § 2244(d)(1)(B)."

II.

The AEDPA established a one-year statute of limitations for federal habeas proceedings. 28 U.S.C. § 2244(d)(1). The limitations period usually begins to run when the state court judgment become final after direct appeal, or the time for seeking such review expires. Id. § 2244(d)(1)(A). Under § 2244(d)(1)(B), the commencement of one-year limitation period is delayed until "the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action." Id. § 2244(d)(1)(B). The Respondent argues that this provision does not apply to Critchley because it requires that the state-created impediment prevent the filing of a federal, as opposed to state, habeas application. Although that position is arguably supported by the language of the statute, we have never so held. In fact in Egerton v. Cockrell, 334 F.3d 433 (5th Cir.2003), our discussion of § 2244(d)(1)(B) recognized the interrelationship between the filing of federal and state habeas petitions. Egerton argued that he was prevented by the inadequacy of the state prison library from seeking all post-conviction review of his state conviction, including a direct appeal, post-conviction relief in state court and a federal habeas petition. We agreed that the inadequate library at the facility in which he was incarcerated, which did not include copies of AEDPA, was a state-created impediment thereby...