     Case: 09-20093 Document: 00511397216 Page: 1 Date Filed: 03/01/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            March 1, 2011

                                       No. 09-20093                         Lyle W. Cayce
                                                                                 Clerk

BRAD ALLEN BROUSSARD,

                                                   Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee




                   Appeals from the United States District Court
                        for the Southern District of Texas
                                 No. 4:08-cv-03002


Before KING, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Brad Allen Broussard appeals the district court’s judgment dismissing his
federal habeas petition as time-barred.             The district court concluded that
Broussard’s first state habeas application was not “properly filed” and thus did
not toll the statute of limitations. We agree and affirm the district court’s
judgment dismissing Broussard’s petition.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-20093

            I. FACTUAL AND PROCEDURAL BACKGROUND
      Brad Allen Broussard was convicted of aggravated robbery in a Texas
state court and sentenced to 50 years’ imprisonment.          His conviction was
affirmed on direct appeal on December 8, 2005. The Texas Court of Criminal
Appeals (TCCA) denied his petition for discretionary review on June 28, 2006.
      Broussard filed a state habeas application on July 5, 2007. In accordance
with Texas procedure, Broussard filed his application in the court in which he
was convicted. That court forwarded his application to the attorney for the state,
the state responded to the application, and the convicting court entered findings
of fact and conclusions of law on September 7, 2007. The convicting court then
transmitted Broussard’s application to the TCCA. On January 23, 2008, the
TCCA dismissed Broussard’s application, stating:
      Applicant contends, among other things, that the indictment was
      defective, that he was denied his right to challenge the composition
      of the grand jury, and that trial counsel was ineffective. Applicant
      also raises other grounds, but despite being typed, these grounds
      are not legible. Accordingly, we dismiss the application.
Ex parte Broussard, No. WR-69020-01, 2008 WL 217840, at *1 (Tex. Crim. App.
Jan. 23, 2008).    Broussard filed a motion for rehearing, arguing that the
illegibility of his application was “due [to] the clerk of the convicting court
transmitting a photo copy of the original application that the applicant filed with
the convicting court.” Broussard also filed a new state habeas application on
February 25, 2008, which the TCCA denied without written order on September
10, 2008.
      Broussard filed his federal habeas petition on September 24, 2008. The
case was referred to a magistrate judge, who questioned the timeliness of
Broussard’s petition. The magistrate judge asked Broussard to “file a written
statement within twenty (20) days of the entry of this Order, addressing the
limitations bar and equitable tolling, if applicable.” Broussard filed a statement


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                                  No. 09-20093

arguing that the limitations period was tolled from July 5, 2007 until the TCCA
denied his second state habeas application on September 10, 2008. He did not
argue that equitable tolling would apply to toll the statute of limitations. The
district court determined that Broussard’s first state habeas application did not
toll the limitations period because it was not “properly filed.” Thus, Broussard’s
federal habeas petition was untimely because it was filed after the expiration of
the one-year statute of limitations.
      We granted a certificate of appealability to address “whether, in view of
the ambiguous wording of the Texas Court of Criminal Appeals’s order denying
Broussard’s first state habeas application, the application was ‘properly filed.’ ”
                        II. STANDARD OF REVIEW
      “We review de novo the denial of a federal habeas petition on procedural
grounds.”   Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003) (citations
omitted).
                              III. DISCUSSION
      Broussard’s petition is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA), which provides a one-year statute of limitations for the
filing of a federal habeas petition. 28 U.S.C. § 2244(d)(1). The limitations period
in this case began to run on September 26, 2006, the last day Broussard could
have filed a petition for a writ of certiorari in the United States Supreme Court
on direct review. § 2244(d)(1)(A). Absent any tolling, the limitations period
would have expired on September 26, 2007.
      AEDPA provides that “[t]he 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.” § 2244(d)(2). The question we must decide is
whether Broussard’s first state habeas application was “properly filed” under
§ 2244(d)(2) such that it tolled the limitations period.

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                                  No. 09-20093

      When Broussard filed his first state habeas application on July 5, 2007,
282 days of the limitations period had expired. If the application was properly
filed, the limitations period was tolled during the pendency of that application.
The limitations period began to run again on January 23, 2008, when
Broussard’s first application was dismissed. The period ran for 34 more days
until it was tolled again on February 26, 2008, with the filing of Broussard’s
second state habeas application. When the TCCA denied Broussard’s second
application on September 10, 2008, 49 days remained in the limitations period.
Broussard filed his federal habeas application 14 days later, on September 24,
2008. Thus, if the first state habeas petition tolled the limitations period,
Broussard’s petition was timely filed. However, if the first application was not
properly filed and did not toll the limitations period, the statute of limitations
expired on September 26, 2007, well before Broussard filed his second state
habeas application in February 2008.
      A state habeas application is properly filed “when its delivery and
acceptance are in compliance with the applicable laws and rules governing
filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). These procedural laws and rules
“usually prescribe, for example, the form of the document, the time limits upon
its delivery, the court and office in which it must be lodged, and the requisite
filing fee.” Id. (footnote omitted). Such requirements are often “conditions to
filing,” as opposed to requirements such as procedural bars that are “conditions
to obtaining relief.” Id. at 10. We look to state law to determine whether a state
habeas application conforms to the state’s procedural filing requirements. Wion
v. Quarterman, 567 F.3d 146, 148 (5th Cir. 2009).
      Here, Texas’s procedural rules require that a state habeas application
“must be made in the form prescribed by the Court of Criminal Appeals,” and the
application “must be typewritten or handwritten legibly.”        Tex. R. App. P.
73.1(a), (c). Under Texas law, compliance with the requirements of Rule 73.1 is

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a prerequisite to consideration of the merits of an applicant’s claims. Ex parte
Blacklock, 191 S.W.3d 718, 719 (Tex. Crim. App. 2006). Therefore, compliance
with the requirements is a “condition to filing” and not a “condition to obtaining
relief.” See Artuz, 531 U.S. at 10. The TCCA dismissed Broussard’s application
as illegible.   We construe the TCCA’s statement as dismissing Broussard’s
application for failing to follow the legibility requirement of Rule 73.1(c). The
TCCA thus dismissed the application for failing to follow the state’s procedural
filing requirements. Although he filed his application in the convicting court,
the TCCA makes the final decision whether the application complies with all
filing requirements and whether to grant or deny the application. See Tex. Code
Crim. Proc. Ann. art. 11.07.             Because compliance with procedural filing
requirements is a matter of state law, we defer to the TCCA’s determination that
Broussard failed to follow the filing requirements. Therefore, Broussard’s first
state habeas application was not “properly filed” and did not toll the AEDPA
statute of limitations.1
       Nor may we apply equitable tolling to toll the statute of limitations for
Broussard’s first state habeas application. See Mathis v. Thaler, 616 F.3d 461,
474 (5th Cir. 2010) (“A habeas petitioner is entitled to equitable tolling only if
he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some



       1
         There is some question whether the TCCA may have considered some of Broussard’s
claims on the merits because the TCCA was able to discern at least three of Broussard’s stated
grounds for relief. If that were the case, we might consider Broussard’s application properly
filed because it was “accorded some level of judicial review.” See Villegas v. Johnson, 184 F.3d
467, 470 n.2 (5th Cir. 1999). However, TCCA’s use of the term “dismiss” belies any notion that
the court considered any of Broussard’s claims on the merits. Ex parte Torres, 943 S.W.2d 469,
472 (Tex. Crim. App. 1997) (“In our writ jurisprudence, a ‘denial’ signifies that we addressed
and rejected the merits of a particular claim while a ‘dismissal’ means that we declined to
consider the claim for reasons unrelated to the claim’s merits.”); see also Singleton v. Johnson,
178 F.3d 381, 384 (5th Cir. 1999) (“In Texas writ jurisprudence, usually a denial of relief
rather than a ‘dismissal’ of the claim by the Court of Criminal Appeals disposes of the merits
of a claim.”). Furthermore, the TCCA stated that it was dismissing the entire application, not
part of the application.

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                                   No. 09-20093

extraordinary circumstance stood in his way’ and prevented timely filing.”
(quoting Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)).    Despite explicitly
being asked by the magistrate judge to address equitable tolling, Broussard did
not argue that equitable tolling should apply to toll the statute of limitations.
And Broussard has not asked this court to apply equitable tolling. Therefore,
Broussard has waived any argument related to equitable tolling. Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993).
                             IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the order of the district court
dismissing Broussard’s petition.




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