Lookingbill v. Cockrell

• Decision Date: 03 June 2002
• Docket Number: No. 00-41089.,00-41089.
• Citation: 293 F.3d 256
• Parties: Robert Andrew LOOKINGBILL, Petitioner-Appellant, v. Janie M. COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

293 F.3d 256

Robert Andrew LOOKINGBILL, Petitioner-Appellant, v. Janie M. COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 00-41089.

United States Court of Appeals, Fifth Circuit.

June 3, 2002.

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Larry L. Warner, Law Offices of Larry Warner, Brownsville, TX, David Kenneth Sergi, San Marcos, TX, for Petitioner-Appellant.

Katherine D. Hayes, Austin, TX, for Respondent-Appellee.

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

Before SMITH, BENAVIDES and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Robert Lookingbill appeals the dismissal, as time-barred under the one-year limitations period established by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d), of his petition for a federal writ of habeas corpus.¹ We affirm.

I.

Lookingbill was convicted of capital murder and sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence on April 6, 1994, and denied rehearing on June 8, 1994. The conviction became final on September 8, 1994, on expiration of the ninety-day period during which he could have applied for writ of certiorari. On November 22, 1996, counsel was appointed to represent him during his state habeas proceedings, and he filed an application for a state writ of habeas corpus on April 21, 1997. On March 4, 1998, the Texas Court of Criminal Appeals denied his state habeas petition, and on March 12 he moved for reconsideration of that denial.²

Lookingbill filed a motion to proceed in forma pauperis ("IFP") and a motion for appointment of federal habeas counsel on May 19, 1998. The trial court set his execution for March 9, 1999. On December 16, 1998, the Texas Court of Criminal Appeals sent a letter to the presiding judge of the district court indicating that the court had denied the motion for reconsideration without written order. The letter was filed in the district court on December 21, 1998.

On February 2, 1999, Lookingbill filed an affidavit in support of his motion to proceed IFP; the following day, the federal district court granted IFP status, appointed federal habeas counsel, and granted a stay of execution.

Lookingbill filed a petition for federal writ of habeas corpus on July 23, 1999. The state moved for summary judgment, averring that the federal petition was time-barred under § 2244(d). Lookingbill asserted that the petition was timely filed and that, even if it was not, equitable tolling excused him. The district court entered summary judgment, then granted Lookingbill a certificate of appealability ("COA") on the limitations and tolling issues.

II.

Lookingbill argues that the district court erred in holding that his federal habeas petition was not filed within AEDPA's one-year limitations period. We review de novo the denial of a federal habeas petition on procedural grounds. Emerson v. Johnson, 243 F.3d 931, 932 (5th Cir.2001); Johnson v. Cain, 215 F.3d 489, 494 (5th Cir.2000). The AEDPA statute of limitations applies to all habeas petitions filed after the Act's effective date: April 24, 1996. Kiser v. Johnson, 163 F.3d 326, 327 (5th Cir.1999). Lookingbill's murder conviction became final before April 24, 1996. Thus, absent any tolling, he had until April 24, 1997, to file an application for federal habeas relief. Smith v. Ward, 209 F.3d 383, 384 (5th Cir.2000); Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.1998).

The parties stipulated, however, that the AEDPA limitations period began to run on November 22, 1996, when Lookingbill was appointed state habeas counsel,³ and that the limitations period ran for 150 days from the appointment of state habeas counsel to the filing of the state habeas petition. The limitations period was tolled between April 21, 1997, when Lookingbill filed his state habeas petition, and March 4, 1998, when the Court of Criminal Appeals denied the state habeas petition. Because Lookingbill filed his federal habeas petition on July 23, 1999, it was untimely under § 2244(d) unless the limitations periods was further tolled.

Lookingbill argues that two additional events should have tolled the running of limitations. The first was his filing of a motion to reconsider the denial of his state habeas petition; the second was his motion for appointment of federal habeas counsel.

A.

Lookingbill claims that the motion to reconsider the denial of his state habeas petition was a "properly filed application for state post-conviction or other collateral review" that tolled the limitations period from the date he filed the motion to reconsider the denial of state habeas relief to December 22, 1998. This circuit, like most, holds that "a properly filed application is one submitted according to the state's procedural requirements...." Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir.1999) (quoting Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir.1998)). We interpret the words "properly filed" narrowly. Williams v. Cain, 217 F.3d 303 307 n. 4 (5th Cir.2000); Villegas, 184 F.3d at 470 ("[W]e ought not assume an overly broad meaning of properly filed." (internal quotation marks omitted)). Thus, a properly filed application must meet all procedural requirements. Galindo v. Johnson, 19 F.Supp.2d 697, 701 (W.D.Tex.1998). If there is an exception to an applicable procedural requirement, and a petition fits within that exception, the petition is properly filed. Smith, 209 F.3d at 385.

Rule 79.2(d), TEX.R.App. P., plainly prohibits the filing of motions for rehearing in habeas cases: "A motion for rehearing an order that denies habeas corpus relief under Code of Criminal Procedure, articles 11.07 and 11.071, may not be filed." Id. Nonetheless, "[t]he Court may on its own initiative reconsider the case." Id. Relying on that rule, the district court reasoned that this discretion was "insufficient to make Lookingbill's petition properly filed." That judgment was correct under Fifth Circuit precedent when the district court wrote the opinion.

After the district court issued its opinion, however, we decided Emerson, which followed the reasoning of Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), and held that, "given Artuz and Texas case law allowing habeas petitioners to file suggestions or motions for reconsideration, AEDPA's one-year statute of limitations is tolled during the period in which a Texas habeas petitioner has filed such a motion." Id. at 935. The court in Emerson cited three Court of Criminal Appeals cases in which a Texas court had entertained a motion for reconsideration.⁴ "The tolling lasts only as long as the Texas courts take to resolve the motion or suggestion for reconsideration." Id.

After the parties had filed their briefs in the instant matter, we decided Melancon v. Kaylo, 259 F.3d 401 (5th Cir.2001), holding that the clock should not start running again between the date of the state trial court's disposition of a state habeas petition and the petitioner's timely filing for direct review at the next level. Id. at 406. Accordingly, under Emerson and Melancon, Lookingbill's motion to reconsider tolled the running of limitations from March 4 to December 16, 1998.

In a supplemental letter brief,⁵ Lookingbill argues that the district court should have tolled the limitations period until the day after the state district court filed the Court of Criminal Appeals' letter.⁶ If we tolled the deadline until December 22, 1998, Lookingbill's COA would be timely.

Section 2244(d)(2) tolls the time limit for state applications that are "pending." 28 U.S.C. § 2244(d)(2). In Emerson, 243 F.3d at 935, we considered how long a motion for reconsideration tolls AEDPA's time limit under § 2244(d)(2). We held that "tolling lasts only as long as the Texas courts take to resolve the motion or suggestion for reconsideration." Our limited holding reflected a serious concern about tolling the deadline for motions for reconsideration filed with the Court of Criminal Appeals; absent a timeline for filing and deciding motions for reconsideration, AEDPA's time limit could toll indefinitely.

The Court of Criminal Appeals "resolve[d]" the motion as soon as it decided it and issued the December 16 letter. Filing the letter ruling with the trial court did nothing to advance or dispose of Lookingbill's case; the motion for reconsideration did not continue to "pend" between the Court of Criminal Appeals' ruling and the filing of the letter. Further tolling would not encourage Lookingbill diligently to exhaust state remedies; after the Court of Criminal Appeals' decision, he had nothing left to do in state court.⁷ Requiring the Court of Criminal Appeals to take further steps after its ruling would only frustrate our attempt in Emerson to cabin the tolling period.

Lookingbill argues that we should apply Texas's "mailbox rule" to toll limitations for three days past when the letter was mailed. First, even if we tolled the deadline for three days, Lookingbill's COA would be untimely. Second, although we are sensitive to state law when determining whether a motion is still "pending," federal law still determines the time limits under AEDPA.⁸

Federal courts interpret the federal time period as running from the event described rather than from receipt of notice.⁹ For example, in Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir.2001), the court reversed a district court for tolling under AEDPA where the petitioner had only one day after the state's actual denial to file a federal petition, reasoning that AEDPA's one-year period suffices, even considering the time it takes for notice to travel through the mails. Id.

Lookingbill does not point to any other provision of state law to argue that his habeas petition is pending. This makes good sense. No other provision of Texas law applies; Texas law bars filing the motion we are considering....