Villegas v. Johnson

• Decision Date: 09 August 1999
• Docket Number: No. 98-10298,98-10298
• Citation: 184 F.3d 467
• Parties: (5th Cir. 1999) FELIZ TALAZ VILLEGAS, Petitioner-Appellant, v. GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 467

184 F.3d 467 (5th Cir. 1999)

FELIZ TALAZ VILLEGAS, Petitioner-Appellant, v. GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 98-10298

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 9, 1999

Rehearing and Rehearing En Banc Denied Sept. 14, 1999.^*

Appeal from the United States District Court for the Northern District of Texas

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Texas state prisoner Feliz Talaz Villegas appeals the dismissal of his petition for a writ of habeas corpus. The district court found that Villegas did not file his petition within the limitation period established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). We conclude that the statute of limitations was tolled while Villegas's second state habeas petition was pending. Because we exclude that time period from the calculus, we find that Villegas's federal petition was timely. We therefore vacate the judgment and remand for further proceedings.

I

On March 21, 1991, a jury convicted Villegas of one count of aggravated sexual assault and two counts of indecency with a child. The trial court sentenced him to a term of imprisonment for thirty-five years for the former count and a term of imprisonment for fifteen years for each of the latter counts. On September 21, 1992, the Court of Appeals affirmed Villegas's conviction. Villegas did not file a petition for discretionary review with the Texas Court of Criminal Appeals.

Villegas filed his first state habeas corpus petition on January 27, 1995. This application included a claim of insufficient evidence, a claim based on the use of extraneous offenses, a challenge to the indictment's charging three non-property offenses arising out of the same transaction, and an argument that the trial court erred in denying Villegas's motion for a new trial based on newly discovered evidence. This petition was denied without written order on June 28, 1995. Villegas filed a second state habeas corpus petition on March 26, 1996. The grounds raised in the second application were that Villegas was denied a complete copy of his trial court records and that he received ineffective assistance of counsel. In accordance with section 4 of article 11.07 of the Texas Code of Criminal Procedure, this petition was dismissed as successive or an abuse of the writ on April 9, 1997, over one year after it was filed.

Pursuant to 28 U.S.C. 2254, Villegas filed a petition for a writ of habeas corpus in federal district court on or about October 7, 1997. In support of this petition, Villegas claimed that he received ineffective assistance of counsel and that the trial court erred in denying his motion for a new trial based on newly discovered evidence. Because Villegas filed his petition after the effective date of AEDPA, its provisions govern his claims. See Lindh v. Murphy, 521 U.S. 320 (1997).

The respondent moved to dismiss the petition on the ground that it was barred by the statute of limitations set forth in 28 U.S.C. 2244(d)(1), as amended by AEDPA. Villegas opposed the motion, relying on AEDPA's tolling provision, 28 U.S.C. 2244(d)(2). He argued that the pendency of his second state petition had tolled the limitation period and that his federal petition was therefore timely. The magistrate judge to whom the matter was referred recommended that the petition be dismissed with prejudice as time-barred. In making this recommendation, the magistrate judge found that Villegas's successive state application had not been "properly filed" as that term is used in 2244(d)(2) and that, as a consequence, its pendency had not tolled the limitation period. Villegas filed a written objection to the magistrate judge's recommendation. The district court subsequently adopted the magistrate judge's report and recommendation and dismissed Villegas's petition with prejudice. Villegas filedatimely notice of appeal, and the district court granted a certificate of appealability for our consideration of the question whether Villegas's second state habeas corpus petition was "properly filed" for purposes of 28 U.S.C. 2244(d)(2).

II

Before AEDPA's enactment, a prisoner faced no strict time constraints in filing a petition for a writ of habeas corpus. See Davis v. Johnson, 158 F.3d 806, 809 n.4 (5th Cir. 1998). AEDPA amended 28 U.S.C. 2244 to establish a one-year limitation period for filing a habeas petition in federal court. In most cases, the limitation period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. 2244(d)(1)(A). In United States v. Flores, 135 F.3d 1000 (5th Cir. 1998), however, we held that this one-year limitation period cannot be applied retroactively to extinguish claims that were technically time-barred prior to AEDPA's enactment. Flores established that a petitioner such as Villegas, whose conviction became final prior to AEDPA's enactment, is afforded one year following AEDPA's effective date, April 24, 1996, to file an application for a writ of habeas corpus.¹ See id. at 1006; cf. Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998) (clarifying that AEDPA's enactment date is excluded from the computation of the one-year period applicable to petitions that would otherwise be time-barred as of April 24, 1996, such that petitions filed on or before April 24, 1997, are timely).

Villegas submitted his petition after April 24, 1997, but asserts that his filing did not fall outside the limitation period. Villegas relies on AEDPA's tolling provision, codified at 28 U.S.C. 2244(d)(2), which states:

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

In Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998), we held that petitioners whose convictions became final before AEDPA's enactment may rely on this tolling mechanism during the pendency of a petition covered by 2244(d)(2). Assessing the merit of Villegas's claim requires that we ascertain the meaning of "properly filed" as that term appears in 2244(d)(2), as only properly filed applications will trigger the Act's tolling provision. Specifically, we must determine whether a successive state petition may fit within the scope of 2244(d)(2).

Villegas argues that his second state habeas corpus petition was filed in accordance with Texas's procedural filing requirements and that the dismissal of that petition as successive has no bearing on whether it was properly filed. The respondent argues that Villegas's second state petition was not properly filed because it was dismissed as successive. The respondent asserts that allowing tolling based on the second petition would undermine the purpose of the limitation period by allowing a prisoner to file endless state petitions while preserving his ability to file stale, but technically timely, federal petitions.

The majority of courts that have considered this issue have concluded that "'a properly filed application' is one submitted according to the state's procedural requirements, such as the rules governing notice and the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998); accord, e.g., Souch v. Harkins, 21 F. Supp. 2d 1083 (D. Ariz. 1998); Galindo v. Johnson, 19 F. Supp. 2d 697 (W.D. Tex. 1998); Ellis v. Johnson, 11 F. Supp. 2d 695 (N.D. Tex. 1998); Hughes v. Irvin, 967 F. Supp. 775 (E.D.N.Y. 1997). A handful of district courts have found instead that a properly filed application is one that is not frivolous, but these courts have offered little analysis to support their conclusion that the phrase "properly filed" connotes some measure of merit. See Washington v. Gramley, No. 97 C 3270, 1998 WL 171827 (N.D. Ill. Apr. 10, 1998); Hill v. Keane, 984 F. Supp. 157 (E.D.N.Y. 1997); Valentine v. Senkowski, 966 F. Supp. 239 (S.D.N.Y. 1997). We agree with the majority line of cases and, based on principles of statutory construction and concerns regarding comity and exhaustion, we hold that a "properly filed application" for 2244(d)(2) purposes is one that conforms with a state's applicable procedural filing requirements.² We further hold that Villegas's second petition, although dismissed as successive, was properly filed and thus tolled the applicable limitation period.

Neither AEDPA nor its legislative history explains which state filings qualify as properly filed applications. See S. Rep. No. 104-179 (1995), reprinted in 1996 U.S.C.C.A.N. 924; H.R. Conf. Rep. No. 104-518 (1996), reprinted in 1996 U.S.C.C.A.N. 944. Like the Third Circuit, we are reluctant to engraft a merit requirement into 2244(d)(2) without some indication of congressional intent to do so. See Lovasz, 134 F.3d at 149 ("After all, Congress chose the phrase 'a properly filed application,' one into which we do not read any requirement that the application be non-frivolous."). That we deal here with a statute that constrains the right to seek a writ of habeas corpus also inclines us to resist an interpretation that goes beyond the plain meaning of 2244(d)(2). Without a clear sign of congressional intent, this court ought not derogate that right by reaching for an overbroad interpretation. See Galindo, 19 F. Supp. 2d at 706-08; cf. Lonchar v. Thomas, 517 U.S. 314, 330 (1996) ("[G]iven theimportance of a first federal habeas petition, it is particularly important that any rule that would deprive inmates of all access to the writ should be both clear and fair.").

We similarly refuse to find that a successive state application or one containing procedurally barred claims is per se improperly filed. Section 2244(d)(2) explicitly requires only that a state application...