Smith v. Ward

• Decision Date: 07 April 2000
• Docket Number: No. 98-30444,98-30444
• Citation: 209 F.3d 383
• Parties: (5th Cir. 2000) RODNEY SMITH, Petitioner-Appellant, v. KELLY WARD, Warden, Wade Correctional Center; RICHARD IEYOUB, Attorney General, State of Louisiana, Respondents-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 383

209 F.3d 383 (5th Cir. 2000)

RODNEY SMITH, Petitioner-Appellant, v. KELLY WARD, Warden, Wade Correctional Center; RICHARD IEYOUB, Attorney General, State of Louisiana, Respondents-Appellees.

No. 98-30444

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

April 7, 2000

Appeal from the United States District Court for the Eastern District of Louisiana

Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Rodney Smith's federal habeas application having been dismissed as untimely under 28 U.S.C. 2244(d)(1)(A), at issue is whether his state habeas application, denied as time-barred pursuant to LA. CODE CRIM. P. art. 930.8, was "properly filed", within the meaning of 2244(d)(2), so that the period for filing his federal application was tolled. We VACATE and REMAND.

I.

In 1988, convicted by a Louisiana jury for possession of stolen things, Smith was sentenced to two years probation. He pleaded guilty in 1990 to three armed robberies, and was sentenced to two concurrent 24-year terms of imprisonment and one concurrent 18-year term of imprisonment. In addition, his probation was revoked he was ordered to serve a two-year term of imprisonment consecutive to the 18-year armed robbery sentence.

In May 1996, Smith filed a state application for post-conviction relief, challenging the 1988 conviction. The petition was denied as time-barred by the state trial court. Smith's appeal was rejected by the intermediate appellate court, and, in October 1997, the Louisiana Supreme Court denied his application for a writ of review. State ex rel. Smith v. State, 703 So. 2d 600 (La. 1997) (citing LA. CODE CRIM. P. art. 930.8).

In January 1998, pursuant to 28 U.S.C. 2254, Smith filed his federal habeas application, challenging the 1988 conviction. ¹ The magistrate judge recommended dismissal as time-barred under 28 U.S.C. 2244(d)(1). The district court overruled Smith's objections, adopted the findings and recommendation, and dismissed the application. It granted a certificate of appealability (COA) on whether Smith timely filed his federal application. See 28 U.S.C. 2253 (habeas claim cannot be reviewed on appeal unless circuit justice or judge granted a COA for that claim).

II.

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA), established a one-year limitation period for state prisoners to file federal habeas applications. 28 U.S.C. 2244(d)(1). And, pursuant to 2244(d)(2), not counted toward that one-year period is the period during which a "properly filed" state habeas application regarding the same conviction and sentence is pending. See 28 U.S.C. 2244(d)(2).

Federal habeas applicants, such as Smith, whose convictions became final prior to AEDPA's 24 April 1996 enactment, had until 24 April 1997 to file a federal habeas application. See Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998). For such applicants, the 2244(d)(2) tolling provision is applicable to this one-year period for filing following AEDPA's effective date. See Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998).

Smith's state application was pending from 23 May 1996 through 10 October 1997. If the time during which it was pending triggers the 2244(d)(2) tolling provision, then Smith's federal application, filed in January 1998, would be timely under 2244(d)(1), as interpreted by our precedent.

The district court held, however, that, because the state application was held time-barred under state law, it had not been "properly filed" for 2244(d)(2) purposes, and thus did not toll the AEDPA one-year limitation period.

Subsequent to the district court's decision, our court interpreted 2244(d)(2) in Villegas v. Johnson, 184 F.3d 467 (5th Cir. 1999), and held that, for 2244(d)(2) purposes, and "based on principles of statutory construction and concerns regarding comity and exhaustion", a state habeas application is "properly filed" when it "conforms with a state's applicable procedural filing requirements". Id. at 470. The court explained: "By procedural filing requirements, we mean those prerequisites that must be satisfied before a state court will allow a petition to be filed and accorded some level of judicial review". Id. at 470 n.2 (emphasis added).

Applying that rule, the Villegas court, id. at 473, determined that a Texas prisoner's state habeas application was properly filed within the meaning of 2244(d)(2), even though it had been dismissed pursuant to TEX. CODE CRIM. P. ANN. art. 11.07, 4. That provision precludes consideration of a successive habeas application unless it contains specific facts establishing that the factual or legal basis for the claim was unavailable when the previous application was filed, or that, "but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt". TEX. CODE CRIM. P. ANN. art. 11.07, 4(a)(2) (West Supp. 2000).

Our court observed in Villegas that, although a Texas state court "will not automatically consider the merits of claims raised in a successive petition, it will accept the petition for filing and review the application to determine whether the statutory exceptions are met"; and, "[i]f the successive petition does not fit within an exception, the state court will dismiss it". See Villegas, 185 F.3d at 472 n.4. Our court concluded that, instead of imposing an absolute bar to filing a successive application, article 11.07, 4, merely discourages them by limiting the availability of relief; and, as such, it is not a "procedural filing requirement" which would render an application improperly filed for 2244(d)(2) purposes. See Villegas, 185 F.3d at 472 n.4.

Smith's state application was dismissed as time-barred, pursuant to LA. CODE CRIM. P. art. 930.8A (West 1997), which imposed a three-year limit for filing such applications. ² Article 930.8A allows a Louisiana state court to consider the merits of a prisoner's untimely application if, inter alia, "[t]he application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his attorney", or the application raises a claim that is "based upon a final ruling of an appellate court establishing a theretofore unknown interpretation of constitutional law and petitioner establishes that this...