Jackson v. Davis

• Decision Date: 02 August 2019
• Docket Number: No. 18-10526,18-10526
• Citation: 933 F.3d 408
• Parties: Willie Frank JACKSON, Petitioner–Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

933 F.3d 408

Willie Frank JACKSON, Petitioner–Appellant,

v.Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 18-10526

United States Court of Appeals, Fifth Circuit.

FILED August 2, 2019

Carl Richard Hennies, Charles Robert Eskridge, III, Esq., Quinn Emanuel Urquhart & Sullivan, L.L.P., Houston, TX, for Petitioner - Appellant.

Joseph Peter Corcoran, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, Nathan Tadema, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent - Appellee.

Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

We must decide whether Willie Jackson is entitled to equitable tolling of limitations for his federal petition for writ of habeas corpus. Because, under the specific circumstances presented, equitable tolling is appropriate, we reverse and remand.

I.

Jackson was convicted of aggravated robbery and sentenced to ninety years. The Texas Court of Appeals affirmed his conviction and sentence on direct appeal, and the Texas Court of Criminal Appeals ("TCCA") denied his petition for review. The Supreme Court denied Jackson’s petition for writ of certiorari on February 29, 2016, making his conviction final.¹

On April 14, 2016, Jackson filed a pro se application for state habeas relief. The TCCA denied it on July 13, 2016, but Jackson did not receive notice. About a year later, on July 20, 2017, Jackson wrote to the TCCA asking for a "status update." Within a few days, the clerk sent a letter saying that his application was denied, but Jackson did not receive that letter. He wrote again on December 20, 2017, and the clerk again responded with a letter. On January 5, 2018—almost eighteen months after the TCCA had denied his state application and almost six months after the one-year limitations period for filing a federal habeas petition had expired, see 28 U.S.C. § 2244(d)(1) —Jackson finally received notice that his application had been denied. The state concedes that he was not notified of the TCCA’s denial until January 5, 2018.

Seventeen days later, on January 22, 2018, Jackson mailed a petition for writ of habeas corpus under 28 U.S.C. § 2254. He explained that he was filing his federal petition more than a year after his conviction became final because he did not receive notice that the TCCA had denied his application for eighteen months after its decision. The petition was referred to a magistrate judge ("MJ"), who recommended denying it as time-barred. The MJ decided that Jackson was not entitled to equitable tolling because, by waiting fifteen months after filing his state application to ask for a status update, he had failed to "show[ ] diligence."

Jackson filed objections to the MJ’s recommendation. The district court overruled them, accepted the recommendation, and denied the petition "with prejudice as barred by the statute of limitations." The court also denied a certificate of appealability ("COA"). Jackson timely appealed, and we appointed counsel. We then granted a COA "as to the equitable-tolling claim that the state court delayed notification that it had denied the habeas application."

II.

A state prisoner generally must file for federal habeas relief within a year after his conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). That limitation period is tolled, however, during the pendency of a properly filed application for state habeas relief. Id . § 2244(d)(2). Additionally, a court may equitably toll limitations if the petitioner establishes "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida , 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (internal quotation marks and citation omitted).

Jackson does not dispute that the district court correctly tolled limitations while his state habeas application was pending. He contends, however, that the court also should have equitably tolled while he waited for notice from the TCCA that it had denied his state habeas application. We agree.

A.

Equitable tolling is "a discretionary doctrine that turns on the facts and circumstances of a particular case." Fisher v. Johnson , 174 F.3d 710, 713 (5th Cir. 1999). It "does not lend itself to bright-line rules, but we draw on general principles to guide when equitable tolling is appropriate." Id . "We [are] cautious not to apply the statute of limitations too harshly," especially when reviewing dismissal of a petitioner’s first habeas petition. Id . (citing Lonchar v. Thomas , 517 U.S. 314, 324, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996) ).²

But equitable tolling is available "only in rare and exceptional circumstances." Hardy v. Quarterman , 577 F.3d 596, 598 (5th Cir. 2009) (per curiam) (internal quotation marks and citation 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." Id. (citation omitted). "A district court’s refusal to invoke equitable tolling is reviewed for abuse of discretion." Id.

There is no dispute that Jackson has established the second element—that "some extraordinary circumstance stood in his way and prevented timely filing." Holland , 560 U.S. at 649, 130 S.Ct. 2549 (internal quotation marks and citation omitted). We have held that delays of four months and of almost a year in receiving notice of the denial of a state application constitute extraordinary circumstances.³ The eighteen-month delay in this case easily satisfies that element under our precedent.

The determinative issue is thus whether the district court abused its discretion in finding that Jackson failed diligently to pursue his rights. For at least two reasons, it did. First, the finding does not adequately account for Jackson’s diligence before and after the delay in receiving notice from the TCCA. Second, it fails to consider the ample precedent from this court and other courts of appeals indicating that Jackson acted diligently by seeking a status update fifteen months after filing for state relief.

1.

"The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Holland , 560 U.S. at 653, 130 S.Ct. 2549 (internal quotation marks and citations omitted). What a petitioner did both before and after the extraordinary circumstances that prevented him from timely filing may indicate whether he was diligent overall.⁴ We therefore have found diligent a petitioner who, inter alia , sought state habeas relief two months after his state conviction became final. See Hardy , 577 F.3d at 597. In contrast, we have ruled that a petitioner who waited almost seven months was not diligent. See Stroman v. Thaler , 603 F.3d 299, 302–03 (5th Cir. 2010) (per curiam).

This court has also looked to how "quickly [a petitioner] pursued federal habeas relief after receiving delayed notice of the denial of his state habeas application." Williams v. Thaler , 400 F. App'x 886, 891 (5th Cir. 2010) (per curiam). We have found diligent petitioners who filed in federal court one week, Hardy , 577 F.3d at 597, three weeks, Williams , 400 F. App'x at 891,⁵ and one month, Phillips , 216 F.3d at 511,⁶ after receiving delayed notice of the denial of state habeas relief or otherwise exhausting state remedies. But we deemed non-diligent a petitioner who waited seven weeks to file in federal court. Stroman , 603 F.3d at 302.

Before and after the delay in receiving notice, Jackson was comfortably within the ranges we have considered diligent. He matched the diligent petitioner in Hardy by filing his state habeas application less than two months after his conviction became final. And he was on par with the diligent petitioners in Hardy , Williams , and Phillips by mailing his § 2254 petition just seventeen days after learning that the TCCA had denied his application. Jackson has "show[n] that he ‘pursued the [habeas corpus relief] process with diligence and alacrity’ both before and after receiving notification." Hardy , 577 F.3d at 598 (quoting Phillips , 216 F.3d at 511 ).

2.

The state acknowledges that "Jackson’s case is similar to Hardy " but claims two "notable distinctions": (1) Jackson waited too long to ask for a status update on his state application, and (2) he delayed too long to follow up when he did not hear back. The state emphasizes that we have "never granted a petitioner equitable tolling following a fifteen-month delay in inquiring about the status of a state habeas application." The state continues that Hardy indicated that an eleven-month wait was diligent and that the district court was "guided by" that case. The state concludes that because Jackson waited fifteen months after filing to inquire, the court did not erroneously apply the law by finding him non-diligent compared to the Hardy petitioner.

Jackson counters that the standard for diligence is reasonableness, that the TCCA is legally obligated to inform a petitioner once it has ruled on his habeas application,⁷ and that courts have recognized that "it is a difficult, if not impossible endeavor," for a pro se litigant to estimate how long it will take a court to render a decision. Miller v. Collins , 305 F.3d 491, 496 (6th Cir. 2002). For those reasons, he explains, courts have not required pro se litigants to send state courts frequent inquiries regarding the status of their applications, "at least until a substantial period of time has elapsed." Diaz v. Kelly , 515 F.3d 149, 155 (2d Cir. 2008).

Jackson continues that this court’s decisions and those of other courts of appeals overwhelmingly support a finding that he acted diligently. That precedent is especially significant, he insists, because in deciding whether to toll, courts "can and do draw upon decisions made in other similar case...