In re Wilson, 04-41724.
| Decision Date | 13 December 2005 |
| Docket Number | No. 04-41724.,04-41724. |
| Citation | 433 F.3d 451 |
| Parties | In re: Marvin Lee WILSON, Movant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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.
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 United States District Court for the Eastern District of Texas. 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). Although that defect has since been cured by a final judgment of the Texas Court of Criminal Appeals, we deny Wilson's present motion for authorization because it is time-barred and because he has not demonstrated the sort of "rare and exceptional circumstances" that would justify equitable tolling of the limitations period.
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).
On that date, the very last day of his AEDPA limitations period, 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. As 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 for reinstatement of the proceedings which we had dismissed without prejudice. He did not file a new motion for authorization at that time. We took no action on the motion for reinstatement, and on December 15, the district court dismissed Wilson's successive application as unauthorized.
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.
The doctrine of equitable tolling is applied very 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) ()
Although the timing of Wilson's application may have been partially affected by factors beyond his control that might in some cases justify equitable tolling, we are not convinced that his case presents the sort of rare and exceptional circumstances we require before applying this "narrowest of exceptions." Fierro, 294 F.3d at 684. The actions of his counsel— particularly in waiting until the very last day of the limitations period to file his application—appear to us to be more indicative of brinkmanship than of careful diligence. "For equitable tolling to apply, the applicant must diligently pursue . . . relief." Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir.1999). As it appears readily to us that Wilson deliberately waited until the last possible moment to file his application, and thereby took a risk that could have been avoided, we decline to extend to him the benefit of equitable tolling.
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) (). Wilson insists that this Texas rule precluded the filing of an Atkins claim during the pendency of his initial federal habeas proceedings and that it justifies equitable tolling for his successive application.
Although we have previously recognized the potential of the two-forum rule to present a rare and exceptional circumstance for a successive habeas applicant seeking to raise an Atkins challenge, In re Hearn, 376 F.3d 447, 457 (5th Cir.2004),1 it does not explain Wilson's waiting until the very last day of the limitations period to file his successive application in federal court. Even if we assume arguendo that the rule did effectively force Wilson to choose between his pending federal writ petition and his successive Atkins claim, that dilemma presented itself just the same on the first day of the limitations period as it did on the last: Wilson did not in any way limit his risk of dismissal by waiting until June 20, 2003, to file. Prudence—and diligence—would seem to us to have required Wilson's counsel to leave himself at least a little room for error, rather than to delay his life-and-death filing to the very last minute. However great an obstacle the two-forum rule may have posed, Wilson's decision to stand mute all the...
To continue reading
Request your trial
-
In re Wilson
...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 Texas death row inmate Marvin Lee Wilson has applied for our authorization ......