Rivera v. Quarterman

• Decision Date: 18 October 2007
• Docket Number: No. 06-70022.,06-70022.
• Parties: Jose Alfredo RIVERA, Petitioner-Appellee, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

505 F.3d 349

Jose Alfredo RIVERA, Petitioner-Appellee, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.

No. 06-70022.

United States Court of Appeals, Fifth Circuit.

October 18, 2007.

Max T. Hendrick, III, Kelly, Hart & Hallman, Catherine B. Smith, Gwendolyn Johnson Samora (argued), Emily Pipkin, Vinson & Elkins, Houston, TX, William E. Lawler, III, Vinson & Elkins, Washington, DC, for Rivera.

Katherine D. Hayes (argued), Austin, TX, for Quarterman.

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

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is a death penalty case from Cameron County, Texas. Texas appeals from a federal grant of habeas relief on Jose Rivera's Atkins claim, arguing that the district court erred in not dismissing his habeas petition as untimely and in finding that Rivera is mentally retarded. We affirm in part, vacate in part, and remand for further proceedings.

I

The dates and sequence of events are important in this appeal. In May 1994, Rivera was convicted and sentenced to death for murdering three-year-old Luis Daniel Blanco. The Texas Court of Criminal Appeals ("CCA") affirmed his conviction and sentence. His first state habeas petition was denied by the CCA on December 16, 1998; the federal district court denied his first federal habeas petition on October 3, 2001. This court denied a Certificate of Appealability on November 27, 2002. Rivera's execution date was set for August 6, 2003.

On June 20, 2003, Rivera filed a state habeas petition raising an Atkins¹ claim for the first time. That was the last day to bring an Atkins claim under AEDPA's one-year statute of limitations period.² The CCA dismissed Rivera's habeas petition on July 25, 2003. Rivera submitted a suggestion for rehearing to the CCA on August 1, 2003, which the CCA rejected on August 5, 2003. Rivera filed, and the state courts rejected, a final state habeas petition on Wednesday, August 6, 2003.

Rivera also sought relief in federal court on his Atkins claim. On Tuesday, August 5, 2003, he filed a motion for authorization to file a successive petition in this court, as required by 28 U.S.C. § 2244(b)(3)(A). Rivera submitted a proposed successive application for habeas corpus to be attached to the motion for authorization. This court denied his first motion on August 6 as failing to make a prima facie showing of mental retardation; this court could not consider all of the evidence of mental retardation Rivera presented because he had not presented that evidence to the state courts. Rivera then filed another habeas petition with the state court on August 6, presenting the evidence of mental retardation that this court refused to consider.

The state courts rejected his petition the same day, and Rivera filed a second motion for authorization to file a successive petition with this court. Now able to consider all of Rivera's evidence, this court concluded that Rivera had made a prima facie showing of mental retardation, authorized the successive petition on that issue only, and stayed his execution. Rivera filed his habeas petition with the district court on Monday, August 11, 2003.

II

After Rivera filed his habeas petition in the federal district court, the state moved to dismiss the petition as being untimely. The state argued that Rivera "should have filed the writ in federal court at the absolute latest on Thursday, August 7, 2003." The state also argued in its motion that Rivera was not entitled to any equitable tolling of the statute of limitations.

The district court summarily denied the state's motion to dismiss the petition during a status conference in September 2003, stating: "Denied. You will preserve your exception. We will revisit those matters." At the end of the conference, the state sought to clarify the nature of Judge Vela's denial of its motion to dismiss. The following exchange occurred:

TEXAS: Your Honor, do I understand that the Court has denied the motion to dismiss filed by the state in its entirety?

COURT: If the state wants to, they can favor me with briefs and the like. I will revisit it. But for right now it stands denied.

TEXAS: That was just what I was going to ask, if you would reconsider

COURT: Yes.

Following the status conference, the parties briefed the mental retardation issue, and Judge Vela held an evidentiary hearing in January 2004. Judge Vela died, however, before rendering a decision. The case was transferred to Judge Hanen, who held a second evidentiary hearing in January 2005. Another round of briefing followed, and Judge Hanen issued a Memorandum Opinion and Order on March 31, 2006, finding Rivera mentally retarded, granting habeas relief, and permanently enjoining him from being executed. However, Judge Hanen did not revisit Judge Vela's timeliness ruling.

III

The state first argues that Rivera's petition is time-barred under AEDPA.

A

While Rivera's state habeas petitions were pending, AEDPA's statute of limitations was tolled.³ Thus, the statute of limitations on Rivera's Atkins claim was tolled through Wednesday, August 6, 2003, the day on which state proceedings ended.⁴ However, because Rivera did not file his state Atkins claims until the last day under AEDPA, none of the statute of limitations period remained. Although this court authorized Rivera to file a successive petition raising his Atkins claim on Wednesday, August 6, he waited over the weekend to file the application with the district court — filing on Monday, August 11. Therefore, his application was untimely.⁵

B

Nevertheless, as we have explained, "[a] court can allow an untimely petition to proceed under the doctrine of equitable tolling `in extraordinary circumstances.' We and the district courts, guided by precedent, must examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling."⁶ "The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable."⁷

Both the state and Rivera would have us decide in the first instance whether equitable tolling is available in this case.⁸ Rivera advances three grounds in support of applying the doctrine: (1) that Texas' former two-forum rule delayed by five months the time he could file in state court; (2) that he had no right to counsel, lacked the financial resources to hire counsel, lacked the resources to develop adequately his Atkins claim, and lacked the mental capacity to represent himself pro se; and (3) that a proved Eighth Amendment claim requires that AEDPA's statute of limitations give way or that it justifies equitable tolling. We, however, decline the parties' invitation to decide now whether equitable tolling applies.

The record before the court is not sufficiently developed for us to engage in the fact-intensive determination of whether equitable tolling is appropriate. Judge Vela denied the state's motion to dismiss summarily. Despite his explicit invitation to the state to brief and raise again the timeliness issue, the state did not do so before either him or Judge Hanen. Rather, the state switched litigation strategies and focused on the merits of Rivera's Atkins claim. The consequence of the state's choice is that a factual record upon which this court could base an equitable tolling decision was not developed before either judge. Considering that we affirm the finding that Rivera is mentally retarded, as discussed below, it would be imprudent for us to proceed in the first instance on the question of equitable tolling, decidedly so given Rivera's second bundle of arguments in favor of equitable tolling — that is, the relationship between his retardation and his ability to pursue habeas relief.

The state baldly asserts that Rivera has never been without counsel since the Supreme Court decided Atkins, and thus we need not concern ourselves with the "hypothetical" problem of a mentally retarded person trying to represent himself pro se. The record, however, is not so certain. It does not clearly reflect whether Rivera had counsel through the entire relevant time period; whether there were gaps in his representation; if there were gaps, why he was without counsel; and the effects of any gaps in representation on Rivera's ability to complete his Atkins petition. Because of that uncertainty, Lewis, where the court declined to apply equitable tolling, is distinguishable: "Lewis obtained his pro bono counsel on or soon after the day he received notice of his previous counsel's withdrawal, which was March 10, 2003, leaving Lewis with over three months to file his state application."⁹

Nor can we discern why it took over five months for Rivera to file his Atkins claim in the state courts. Perhaps the state is correct in its answer, but it assumes attorney error or lack of diligence — an assumption not tested in a hearing. Nor does the record sufficiently develop what particular obstacles Rivera encountered in assembling his Atkins claim. For example, it is unclear to what extent he was able to access medical records in the state's control, or exactly how his indigence impacted his ability to develop his claim.

All that is clear is that what occurred during the nearly six months between the end of the first federal habeas proceedings and the filing of Rivera's state petition raising his Atkins claim is unclear. Until the underpinnings of what happened and why are made clear, we cannot rule on equitable tolling. Our examples of uncertainties that remain are meant to be illustrative but not exhaustive of what the parties should explore before the district court. Accordingly, we vacate Judge Vela's order denying the state's motion and remand to the district court with instruction to hold an evidentiary hearing, make...