In re Wilson

• Decision Date: 10 March 2006
• Docket Number: No. 04-41724.,04-41724.
• Parties: In re: Marvin Lee WILSON, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

442 F.3d 872

In re: Marvin Lee WILSON, Petitioner.

No. 04-41724.

United States Court of Appeals, Fifth Circuit.

March 10, 2006.

James A. Delee, Law Offices of James A. Delee, Port Arthur, TX, for Wilson.

Motion for Authorization to File Successive Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254.

Before DAVIS, WIENER, and GARZA, Circuit Judges.

BY THE COURT:

This court's order, 433 F.3d 451, 2005 WL 3418652 (5th Cir. Dec.13, 2005), is hereby withdrawn, and the following order is substituted:

Texas death row inmate Marvin Lee Wilson has applied for our authorization to file a successive application for a writ of habeas corpus in the district court. He seeks to challenge his death sentence pursuant to the Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), prohibiting the execution of mentally retarded criminals. This is Wilson's second motion for authorization; we dismissed without prejudice his first motion for failure to exhaust his Atkins claim in state court. No. 03-40853 (Nov. 10, 2003). We did, however, hold that Wilson had made the prima facie showing required for filing a successive habeas application.¹ Id. at 3.

Although Wilson's failure to exhaust has now been cured by a final judgment of the Texas Court of Criminal Appeals, Wilson's present motion for authorization is time-barred. However, because Wilson has demonstrated the sort of "rare and exceptional circumstances" that justify equitable tolling of the limitations period, we grant his motion.

I. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a one-year limitations period for habeas applications. 28 U.S.C. § 2244(d)(1). In cases like Wilson's, the year commences to run from "the date on which the constitutional right asserted was ... newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." § 2244(d)(1)(C). The Supreme Court issued Atkins on June 20, 2002; thus, the one-year limitations period for filing a habeas application based on Atkins expired on June 20, 2003. See In re Hearn, 376 F.3d 447, 456 n. 11 (5th Cir.2004).²

On June 20, 2003, the very last day of his AEDPA limitations period, and while Wilson's application for COA on his initial federal habeas claims was pending in this court, Wilson filed successive applications for habeas corpus in both federal district court and Texas state court. We dismissed without prejudice his federal application, as noted above, while his state application went forward in the Texas courts. Because the time during which a properly filed application is pending in state court is not counted toward the federal limitations period, 28 U.S.C. § 2244(d)(2), Wilson's time for filing in federal court—with one day remaining—was tolled for as long as his state application was pending in the Texas courts.

On November 10, 2004, the Texas Court of Criminal Appeals issued a final judgment denying Wilson's state application. This left Wilson with one business day to refile his application in federal court. As November 11 was a federal holiday, Wilson's filing deadline was November 12, 2004.

Wilson attempted to refile his successive application in the district court on November 12, but without our prior authorization as required under the AEDPA. 28 U.S.C. § 2244(b)(3)(A). Nearly a month later, on December 10, Wilson submitted a motion to us, under the docket number of his previously filed motion, for reinstatement of these proceedings. He did not file a new motion for authorization at that time. Although apparently not contrary to any written rule, because Wilson's motion to reopen the prior docket number was inconsistent with the standard operating procedure of the Clerk's Office, the Court administratively declined to accept the motion for reinstatement. On December 15, the district court dismissed Wilson's successive application as unauthorized.³

Not until December 22, 2004, a full forty days after his filing deadline, did Wilson properly file his new motion for authorization. His application is clearly barred by AEDPA's statute of limitations and must be denied, unless he has demonstrated that he is entitled to equitable tolling of the limitations period.

II. Equitable Tolling

The doctrine of equitable tolling is applied restrictively and, as we have held repeatedly, is entertained only in cases presenting "rare and exceptional circumstances where it is necessary to preserve a plaintiff's claims when strict application of the statute of limitations would be inequitable." Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir.2002) (internal quotation and alteration omitted). A petitioner's failure to satisfy the statute of limitations must result from external factors beyond his control; delays of the petitioner's own making do not qualify. See Felder v. Johnson, 204 F.3d 168, 174 (5th Cir. 2000) ("Equitable tolling is appropriate when an extraordinary factor beyond the plaintiff's control prevents his filing on time.") In other words, if Wilson unreasonably waited until the very last day of the one-year period following the Supreme Court's ruling in Atkins to assert his claim, then despite his last-minute efforts to file on November 12, his failure to meet his one-year deadline is his own fault and he is not entitled to equitable tolling. "Equity is not intended for those who sleep on their rights." Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999).

Wilson contends, however, that he was prevented from timely filing in federal court by the Texas habeas corpus procedure that was in effect during the year immediately following Atkins. Until recently, a unique rule in the Texas courts prevented habeas petitioners from maintaining both state and federal applications at the same time. Often referred to as the "two-forum rule," it forced a petitioner to "decide which forum he [would] proceed in, because [the state courts would not] consider a petitioner's application so long as the federal courts retain[ed] jurisdiction over the same matter." Ex parte Green, 548 S.W.2d 914, 916 (Tex.Crim.App.1977), quoted in In re Hearn, 376 F.3d 447, 456 (5th Cir.2004); see also Ex parte Powers, 487 S.W.2d 101 (Tex.Crim.App.1972) (dismissing state writ when federal courts had not dismissed parallel writ). Wilson argues that this Texas rule precluded the filing of an Atkins claim, which was in effect throughout the pendency of his initial habeas proceedings, while the initial application was still pending, and that it justifies equitable tolling for his successive application.

We have previously considered, in a case involving similar circumstances, whether Texas's two-forum rule could present a rare and exceptional circumstance preventing prisoners from asserting their rights. In In re Hearn, 376 F.3d 447 (5th Cir. 2004)("Hearn I"), we determined that the "two-forum rule appears to have effectively forced Hearn to choose between federal review of his pending writ petition and his right to pursue successive habeas relief under Atkins." Id. at 457. Even though we did not squarely hold that Hearn was entitled to equitable tolling, we granted his motion for appointment of "counsel to investigate and prepare a tolling claim." Id.

Upon a motion for rehearing following Hearn I, we denied rehearing and clarified our opinion. See In re Hearn, 389 F.3d 122 (5th Cir.2004) ("Hearn II"). Although we limited our opinion in Hearn II to cases in which petitioner lacked counsel we found that equitable tolling did apply in that case "because of the combination of the problem created by the Texas two-forum rule, which Texas has overturned, and the withdrawal of petitioner's counsel." Id. at 123.

The two-forum rule presented Wilson with the same dilemma that Hearn faced. Although Texas recently abandoned the rule, see Ex parte Soffar, 143 S.W.3d 804 (Tex.Crim.App.2004), it was still in effect for the entire year following the Supreme Court's ruling in Atkins. As in Hearn I, Wilson had already filed his initial federal habeas petition and was awaiting our ruling on his application for a certificate of appealability (COA) when the limitations period expired.⁴

Not only did the two-forum rule prevent Wilson from filing his Atkins claim in state court, it also kept him from amending his federal application to include an Atkins claim because it would have been dismissed as unexhausted. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (requiring dismissal of "mixed petitions" containing both exhausted and unexhausted claims). Thus, the rule presented a dilemma for Wilson, as it did for Hearn, because bringing his Atkins claim in state court would have required him to abandon his initial federal habeas application and sacrifice permanently the claims within it.⁵ This problematic situation is precisely what ultimately led the Texas Court of Criminal Appeals to abandon the rule. See Soffar, 143 S.W.3d at 806.

Wilson appears to have delayed filing his Atkins claim in the state court until the last possible moment in the hope that we would rule on his initial federal habeas application before expiration of the one-year limitations period. When June 20, 2003, arrived and we still had not issued a decision on his initial motion for COA, Wilson filed successive applications in both state and federal court raising his Atkins claim. With the Texas two-forum rule still in effect at that time, Wilson ran the risk of, and indeed, likely expected dismissal in state court; but only by filing before close of business on June 20, 2003, could he preserve his claim in federal court.

As it turned out, the Texas Court of Criminal Appeals did not enforce the two-forum rule in Wilson's case. Rather than dismissing his successive application, the court remanded it to the trial court for consideration on the merits. But Wilson could not have known in advance that the rule would not be...