     Case: 09-20136 Document: 00511318962 Page: 1 Date Filed: 12/13/2010




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

                                                 FILED
                                                                         December 13, 2010

                                       No. 09-20136                         Lyle W. Cayce
                                                                                 Clerk

CLEMMIE R WICKWARE,

                                                   Petitioner - Appellant
v.

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

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-3806


Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Clemmie Wickware, Texas state prisoner number 555001, appeals from
the district court’s denial of his petition for habeas corpus relief as time-barred
under 28 U.S.C. § 2244(d)(1)(A).           We granted a certificate of appealability
(“COA”) on two issues: (1) whether the State of Texas (the “State”) created an
impediment to Wickware’s timely filing within the meaning of 28 U.S.C.
§ 2244(d)(1)(B) by denying him access to legal materials or by waiting nine


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20136

months to reject his state habeas application as procedurally deficient, and (2)
whether the State’s same actions entitle Wickware to equitable tolling of the
limitations period prescribed by § 2244(d)(1)(A). Although Wickware makes
other arguments on appeal, we only have jurisdiction to consider claims as to
which a COA has issued. Larry v. Dretke, 361 F.3d 890, 896 (5th Cir. 2004). We
therefore confine our review to these two issues.
      We hold that Wickware has not made the showing required to entitle him
to statutory or equitable tolling. Accordingly, we AFFIRM.
                        I. Facts & Procedural History
      Clemmie R. Wickware was convicted of assault on a public servant in
Texas state court on March 31, 2000 and sentenced to fifty years imprisonment.
Texas’s First District Court of Appeals affirmed Wickware’s conviction on March
7, 2002. Wickware v. State, No. 01-00-00729-CR, 2002 Tex. App. LEXIS 1700,
at *8 (Tex. App.—Houston [1st Dist.] Mar. 7, 2002, pet. ref’d). The Texas Court
of Criminal Appeals (“TCCA”) refused Wickware’s petition for discretionary
review (“PDR”) on October 2, 2002.
      On August 29, 2003, Wickware completed a state petition for habeas
corpus; the court received and docketed the petition on September 15, 2003.
Nine months later, on June 23, 2004, the TCCA rejected his petition on the
grounds that Wickware had failed to set out the asserted errors and relevant
facts on the required form as required by Texas Rules of Appellate Procedure
73.1 and 73.2. On July 2, 2004, Wickware refiled his state habeas petition, and
the TCCA ordered multiple evidentiary hearings. See Ex parte Wickware, No.
WR-22,937-20, 2006 Tex. Crim. App. Unpub. LEXIS 26, at *2–3 (Tex. Crim. App.
Sept. 13, 2006). Ultimately, the TCCA denied Wickware’s petition on April 4,
2007. See Ex parte Wickware, No. WR-22,937-20, 2007 Tex. Crim. App. Unpub.
LEXIS 846, at *2 (Tex. Crim. App. Apr. 4, 2007). Wickware did not file a petition
for writ of certiorari with the United States Supreme Court.

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       On October 18, 2007, Wickware filed a federal application for habeas
corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the
Southern District of Texas.1              The State moved for summary judgment,
contending that the federal habeas application was time-barred because it was
filed outside the one-year limitation period prescribed by AEDPA. See 28 U.S.C.
§ 2244(d)(1). Wickware opposed the motion, but the district court agreed with
the state and granted summary judgment and sua sponte denied a COA.
Wickware timely appealed and requested a COA from this court. We granted a
COA as to the equitable and statutory tolling issues alone on December 3, 2009,
and denied Wickware’s request for a COA on all other issues raised.
                                   II. Standard of Review
       We review de novo the district court’s grant of summary judgment denying
a state petitioner’s request for habeas relief. E.g., Goodrum v. Quarterman, 547
F.3d 249, 255 (5th Cir. 2008). We may affirm a grant of summary judgment on
any ground supported by the record, even if different from the reason relied upon
by the district court. Id. “Because the district court granted summary judgment
to the State, this court must determine whether the record discloses any genuine
issues of material fact, such that would preclude summary judgment in the
State’s favor.” Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001). While we
are, in undertaking this assessment, normally required to view the facts in the
light most favorable to the nonmoving party, see Scott v. Harris, 550 U.S. 372,
378 (2007), the Supreme Court has made clear that, “[w]hen opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that
no reasonable [trier of fact] could believe it, a court should not adopt that version


       1
         Consistent with the established law of this circuit, we refer to the date that Wickware
certified that a federal filing was placed in the prison mail system as its “filing date.” See, e.g.,
Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998). By contrast, we treat state filings as made
when received and filed by the court. See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.
1999).

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of the facts for purposes of ruling on a motion for summary judgment.” Id. at
380.
        Because the decision to invoke equitable tolling is discretionary, we review
the district court’s grant or denial of equitable tolling for abuse of discretion.
Cousin v. Lensing, 310 F.3d 843, 847–48 (5th Cir. 2002). Of course, “a court by
definition abuses its discretion when it makes an error of law,” United States v.
Riggs, 314 F.3d 796, 799 (5th Cir. 2002), and we review the conclusions of law
that underlie the district court’s ruling on equitable tolling de novo, see Fisher
v. Johnson, 174 F.3d 710, 713 & n.9 (5th Cir. 1999).
                                     III. Discussion
        As a background principle, AEDPA generally prohibits a state prisoner
from filing a habeas corpus petition challenging a state conviction more than one
year after the conclusion of the period for seeking direct review of that
conviction. 28 U.S.C. § 2244(d)(1)(A). This one-year limitations period is tolled
during the pendency of a “properly filed application for State post-conviction or
other collateral review.” § 2244(d)(2). However, neither an improperly filed
state habeas petition nor a state habeas petition filed outside the limitations
period has any effect on the one-year time-bar. See Artuz v. Bennett, 531 U.S.
4, 8 (2000) (“[A]n application is ‘properly filed’ when its delivery and acceptance
are in compliance with the applicable laws and rules governing filings.”);2 Scott
v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (“[Petitioner]’s state habeas
application did not toll the limitation period under § 2244(d)(2) because it was
not filed until after the period of limitation had expired.”).



        2
         We have repeatedly applied the rule of Artuz to the TCCA’s rejection of filings
pursuant to Texas Rule of Appellate Procedure 73.2 in several unpublished decisions. E.g.,
Whitlock v. Quarterman, No. 06-11066, 2008 U.S. App. LEXIS 17196, at *2 (5th Cir. Aug. 8,
2008); Caldwell v. Dretke, 182 F. App’x 346, 347 (5th Cir. 2006); Edwards v. Dretke, 116 F.
App’x 470, 471 (5th Cir. 2004). While non-precedential, these decisions are, especially taken
together, strongly persuasive on nearly identical facts.

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       The district court thus correctly held that, if Wickware’s petition is
governed by the general rule of § 2244(d)(1)(A) and equitable tolling does not
apply, it was untimely. Wickware’s conviction became final for AEDPA purposes
on December 31, 2002,3 and he thus had until December 31, 2003 either to
properly file a state petition to toll the federal limitations period or to file his
federal petition. Wickware did not “properly file” his state petition until July 2,
2004, nor did he file his federal petition until October 18, 2007; both filings came
well outside the regularly-calculated limitations window.
       This appeal concerns exceptions to the general rule. Wickware alleges
that the State engaged in two distinct acts of misconduct that entitle him to two
alternative avenues of relief from the AEDPA limitations bar. Specifically,
Wickware asserts that the State (1) denied him access to the proper forms and
legal materials needed to prepare his first state habeas application in
compliance with the TCCA’s rules, and (2) took an excessively long time to reject
that application as noncompliant with those rules. He thus seeks (1) the benefit
of the statutory limitations extension provided by § 2244(d)(1)(B) for state-
created impediments to filing or, alternatively, (2) equitable tolling of the
§ 2241(d)(1)(A) one-year limitations period by virtue of the state’s alleged
misconduct.      We begin by describing in further detail the two forms of
wrongdoing that Wickware asserts and then apply the record developed at
summary judgment to the two forms of relief sought.




       3
         The TCCA refused Wickware’s PDR on October 2, 2002; after allowing ninety days
thereafter for the period during which Wickware could have filed a petition for writ of
certiorari with the United States Supreme Court, the state judgment became final on
December 31, 2002. See Foreman v. Dretke, 383 F.3d 336, 340 (5th Cir. 2004) (“[Petitioner]’s
conviction . . . became final for AEDPA purposes 90 days after the [T]CCA denied his PDR.”).

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A.     Challenged State Actions
       1.      State Habeas Corpus Application Forms
       Wickware first claims that the State failed to provide him with the proper
forms he needed to comply with Texas Rules of Appellate Procedure 73.1 and
73.2. Wickware asserts that he was provided with out-of-date copies of the forms
on which the TCCA requires state applications for habeas corpus to be submitted
and that these forms did not reflect recent revisions. Wickware further asserts
that the TCCA ultimately rejected his filing because he was using the old version
of this form, and that as soon as he discovered that there were new versions of
the form, he refiled the application. It appears from the record, however, that
the TCCA rejected Wickware’s application not because it was made on the wrong
form but because the TCCA concluded that he did not fill out the form properly.
The letter from the TCCA’s clerk returning the court’s order dismissing his
application reads: “We are returning this application because it does not comply
with Rule 73.2 of the Texas Rules of Appellate Procedure.                         Specifically:
Applicant does not set out his grounds of error, or facts, on the required form.
He merely refers to an attached memo.” Clerk’s Return of Application at 1, Ex
parte Wickware, No. 22,937-18 (Tex. Crim. App. June 23, 2004) (emphasis
added).
       Important here is that Wickware’s assertion that he was provided with the
wrong form is both belied by the record4 and impossible. The State argues that
the Texas Rules of Appellate Procedure and the general orders of the TCCA

       4
          Wickware’s original state petition was not included in the record filed by the State
in response to the district court’s order that the State, “in lieu of a formal Answer . . . provide
to the court, on or before March 28, 2008, a complete copy of the state court records for”
Wickware’s case. The State subsequently provided this court with a copy of the of the original
state petition. While we note that the State unquestionably should have either produced this
state petition in response to the district court’s order or moved for modification of the order,
because Wickware “neither objected [to the omission] nor requested that additional [state
court records] be furnished, and no prejudice has been shown[,] . . . no error has been
committed.” Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).

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make clear that the form required by Rule 73.1 was created in the first instance
in 2000 when Rule 73 was adopted and has only ever been changed in 2007.5
Therefore, the State reasons, Wickware could not, in 2002 or 2003, have been
provided by the prison with an “out-of-date” form, as there was only one version
of the form then extant. The State further points out that Wickware’s refiled
application, which the TCCA did accept for filing and reviewed on the merits,
was made on the original 2000 version of the form.
      We discern no genuine issue of material fact suitable for further
evaluation by the district court on this point.          As the Supreme Court has
cautioned, “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable [trier of fact] could
believe it, a court should not adopt that version of the facts for purposes of ruling
on a motion for summary judgment.” Scott, 550 U.S. at 380. We decline to
assume the accuracy of Wickware’s contention that the prison system provided
him with an “out-of-date” habeas application form when no such form existed
and when the form he originally filed is the same as the “correct form.” We
therefore also conclude that the TCCA must not have rejected Wickware’s filing
for employing an out-of-date version of the habeas corpus application form.
Therefore, we need not and do not address whether a state’s provision of out-of-
date forms would constitute a basis for statutory or equitable tolling for a habeas
petitioner.
      2.      Delay in Ruling
      The remainder of our analysis instead focuses on the second instance of
alleged misconduct that Wickware asserts: the nine-month gap between


      5
        See Order Amending Texas Rules of Appellate Procedure at 4–14, Misc. No. 00-101
(Tex. Crim. App. Oct. 16, 2000) (adopting rule and promulgating form); Order Approving
Revisions to the Form for an Application for a Writ of Habeas Corpus Seeking Relief from a
Final Felony Conviction Under Code of Criminal Procedure Article 11.07, Misc. No. 06-103
(Tex. Crim. App. Mar. 5, 2007).

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Wickware’s filing of his first state habeas application in the state trial court and
the TCCA’s order—signed by Judge Paul Womack—rejecting the application for
noncompliance with Rule 73.1. The State does not contend that any unusual
situation caused any delay in handling Wickware’s application.
      Under Texas’s habeas corpus statute, the State normally has fifteen days
to respond to a filed application for habeas corpus, and the trial court then has
twenty days to make initial findings and refer the application to the TCCA. T EX.
C ODE C RIM. P ROC. A NN. art. 11.07, § 3(b), (c). Wickware attaches to his brief a
response filed by the State on September 29, 2003, and “Findings of Fact” from
the state trial court dated October 1, 2003, determining his application to be
meritless and recommending denial by the TCCA. Wickware filed a mandamus
petition with the TCCA on November 26, 2003, to determine the status of his
petition. On January 28, 2004, the TCCA ordered the state to file a response, Ex
parte Wickware, No. 22,937-17, slip op. at 1–2 (Tex. Crim. App. Jan. 28, 2004),
before ultimately rejecting the mandamus petition together with the application
for habeas corpus itself six months later. Wickware also attaches to his brief a
postcard notice from the TCCA dated February 6, 2004 and mailed March 1,
2004 stating: “On this day, the application for 11.07 Writ of Habeas Corpus has
been received and presented to the Court.” It is not clear from the record,
however, what else, if anything, transpired prior to the court’s dismissal order
dated June 23, 2004.
B.    Remedies
      1.    Equitable Tolling
      As the Supreme Court has recently announced, AEDPA’s statute of
limitations is subject to equitable tolling in proper cases. See Holland v. Florida,
130 S. Ct. 2549, 2560 (2010). “A habeas petitioner is entitled to equitable tolling
only if he shows ‘(1) that he ha[d] been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and prevented timely

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filing.’” Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010) (quoting Holland,
130 S. Ct. at 2562) (alteration in original) (internal quotation marks omitted).
Holland defines “diligence” for these purposes as “reasonable diligence, not
maximum feasible diligence,” 130 S. Ct. at 2565 (internal citations and quotation
marks omitted), and we have repeatedly emphasized that equitable tolling is not
available to “those who sleep on their rights,” see, e.g., Covey v. Ark. River Co.,
865 F.2d 660, 662 (5th Cir. 1989).
      Giving Wickware all benefit of the doubt, equitable tolling still would not
help him.   Even if we fictionally extend the benefit of § 2244(d)(2) to his
improperly filed petition and discount the entire period of time from Wickware’s
original filing of his state habeas application on August 29, 2003, and the
TCCA’s ruling on the merits of Wickware’s second application on April 4, 2007,
Wickware would fail to meet the AEDPA time limits. Wickware’s conviction
became final for AEDPA purposes on December 31, 2002; he then waited
approximately eight months before filing his first state habeas application. After
the TCCA ruled on the merits of his second application, Wickware waited
another six months before filing his federal petition, giving Wickware the
equivalent of at least fourteen total months of AEDPA time even accepting his
argument for equitable tolling and subtracting the entire timeframe of the state
court habeas proceedings. Wickware nowhere offers any colorable explanation
for his delay in filing his state application in the first instance or in filing his
federal application after the TCCA’s ruling on the merits. Even giving him all
benefit of the doubt on this argument, then, Wickware’s federal petition is
untimely. See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (holding
that a petitioner was not entitled to equitable tolling where he waited six
months to file a federal petition after any state misconduct ended); see also
Hardy v. Quarterman, 577 F.3d 596, 597, 599 (5th Cir. 2009) (per curiam)
(holding that petitioner was diligent for equitable tolling purposes where

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                                        No. 09-20136

petitioner filed state petition two months after conviction was final and filed
federal petition seven days after discovering state had denied petition on the
merits); Webb v. Dretke, 165 F. App’x 375, 376 (5th Cir. 2006) (unpublished)
(declining to extend equitable tolling where tolling argument did not explain
prisoner’s separate 11-month delay in seeking state postconviction relief).6
      2.        § 2244(d)(1)(B)
      Wickware’s other argument is that he is entitled to relief under the
statutory time-bar reset provision of § 2244(d)(1)(B) because the state delayed
so long, in his view, in dismissing his application. If that provision applies, then
the one-year AEDPA limitations period would begin when “the impediment to
filing . . . was removed,” § 2244(d)(1)(B), and Wickware’s federal petition would
be timely due to the tolling while the properly-filed state application was
pending. In other words, if this argument were successful, Wickware would get
a full year starting on June 23, 2004; combined with the tolling during his
second application, his October 2007 federal filing would be timely.
      The requirements for this restart are understandably steep. We have
explained that, “[i]n order to invoke § 2244(d)(1)(B), the prisoner must show
that: (1) he was prevented from filing a petition (2) by State action (3) in
violation of the Constitution or federal law.” Egerton v. Cockrell, 334 F.3d 433,
436 (5th Cir. 2003).
      Even assuming the first two prongs of this test are met here, Wickware
fails the third.      No federal statute compels the Texas courts to act on an
application for habeas corpus within any particular time limits. Wickware can
therefore only prevail in applying § 2244(d)(1)(B) by showing that the state’s
actions were so egregious as to constitute a violation of the United States
Constitution.       We held in Critchley v. Thaler that a state court system’s



      6
          While Webb is unpublished, we cite the case for its persuasive value on similar facts.

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                                       No. 09-20136

mishandling of a habeas corpus application could, under sufficiently exceptional
facts, constitute an “impediment” within the meaning of § 2244(d)(1)(B). 586
F.3d 318, 321 (5th Cir. 2009). In Critchley, the state district clerk received and
simply did not file the petitioner’s first two state habeas applications and then
delayed filing his third application for four months.                      Id. at 318–19.
Characterizing the situation as “unique,” we held that “the failure of the . . .
County Clerks Office to timely file Critchley’s and other prisoners’ petitions for
state post-conviction relief qualifies as a state-created impediment under
§ 2244(d)(1)(B).” Id. at 321.
       Critchley, however, involved a complete absence of due process in the form
of the repeated failure of a district clerk to comply with a ministerial duty to file.
See id. at 319 (“The magistrate judge stated . . . that it was not clear ‘if the . . .
District Clerk simply discards state prisoners’ mail, ignores it, loses it, or is so
disorganized that filings are lost before they reach the file.’”). Here, by contrast,
we have an alleged delay not in a ministerial act by a clerk, but in a judge’s
ruling, however “routine” or “simple” one might think the ruling is or should be.
Wickware cites no authority for the proposition that a court’s failure to rule for
nine months7 constitutes a federal constitutional violation entitling him to
restart the AEDPA clock. Though we appreciate and share the viewpoint that
rulings should be issued as quickly as possible, under the facts of this case, we
cannot conclude that the delay in ruling amounted to a constitutional violation
as contemplated by AEDPA.8 We express no opinion on whether a delay in


       7
          Nine months represents the time from Wickware’s original filing in the state trial
court to the entry of Judge Womack’s order. Of course, part of these nine months was spent
in the state trial court. The TCCA’s postcard notice suggests that the matter was placed on
the court’s docket in February of 2004. Thus, from the TCCA’s perspective, the time period
for ruling was actually under five months.
       8
          Because of our disposition of this appeal, it is unnecessary to reach the question of
whether we should dismiss this appeal as barred by our order sanctioning Wickware in a
previous case. See Wickware v. Collins, No. 95-40641, 81 F.3d 157, 1996 WL 101592, at *1 (5th

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                                      No. 09-20136

ruling could be so long as to warrant relief; we simply conclude this case does not
present such a situation.
                                     IV. Conclusion
       For the foregoing reasons, we AFFIRM.




Cir. Feb. 29, 1996) (unpublished) (imposing sanction).

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