     Case: 10-10701     Document: 00511913973         Page: 1     Date Filed: 07/09/2012




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

                                                                            FILED
                                                                            July 9, 2012

                                       No. 10-10701                        Lyle W. Cayce
                                                                                Clerk

CALVIN ERVIN MCNAC,

                                                  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 Northern District of Texas
                             USDC No. 3:09-CV-1837


Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Calvin Ervin McNac, Texas prisoner # 1240121, proceeding pro se, appeals
the district court’s dismissal of his 28 U.S.C. § 2254 petition as time-barred. We
granted a certificate of appealability on the issue of whether the Dallas County
District Court clerk’s office’s failure to process McNac’s state postconviction
application constituted a state-created impediment entitling McNac to statutory
tolling under 28 U.S.C. § 2244(d)(1)(B). For the following reasons, we AFFIRM.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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           I. FACTUAL AND PROCEDURAL BACKGROUND
      Calvin Ervin McNac (“McNac”) was convicted of sexual assault of a child
and sentenced to twenty years of imprisonment. McNac v. State, 215 S.W.3d
420, 422-23 (Tex. Crim. App. 2007). The Texas Court of Criminal Appeals
(“TCCA”) affirmed his conviction on February 14, 2007. Id. at 420. McNac did
not file a petition for writ of certiorari with the United States Supreme Court.
Thereafter, McNac sought state postconviction relief. On January 8, 2008, the
Dallas County District Court clerk’s office filed McNac’s state postconviction
application. The TCCA denied his state postconviction application without
written order on May 20, 2009.
      On September 28, 2009, McNac filed a 28 U.S.C. § 2254 habeas petition in
federal district court, raising seven grounds for relief. Rick Thaler (“Thaler”),
Director of the Texas Department of Criminal Justice, answered that McNac’s
federal habeas petition was time-barred under the one-year statute of
limitations of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See 28 U.S.C. § 2244(d). McNac objected to Thaler’s time-bar
defense, disputing the date on which his state postconviction application was
filed. McNac alleged that he mailed his application to the state court on
September 6, 2007, and that the court received the application on September 10,
2007, as evidenced by the certified mail return receipt or “green card.” McNac
asserted that the clerk’s office “sat on” his application for four months, before
finally filing it on January 8, 2008. McNac argued that he diligently pursued
habeas relief because on October 29, 2007, he sent a letter to the clerk’s office
inquiring about the status of his state postconviction application, and on
November 19, 2007, he sent a second letter to the clerk’s office informing the
court that he was requesting mandamus relief from the TCCA.
      The magistrate judge issued a report recommending that McNac’s federal
habeas petition be dismissed as time-barred. The magistrate judge found that

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McNac’s conviction became final on May 15, 2007, the last day on which McNac
could have petitioned the Supreme Court for a writ of certiorari from the TCCA’s
judgment affirming his conviction. The magistrate judge determined that the
one-year limitations period began to run on May 16, 2007, and that 237 days of
the one-year limitations period had elapsed as of January 8, 2008, the date on
which the clerk filed McNac’s state postconviction application. The magistrate
judge found that the limitations period was tolled while his state postconviction
application remained pending, or until its denial on May 20, 2009.           The
magistrate judge determined that the one-year period resumed on May 21, 2009,
and expired 128 days later on September 25, 2009. Because McNac did not file
his federal habeas petition until September 28, 2009, the magistrate judge
concluded that McNac’s § 2254 petition was time-barred.
      In a footnote, the magistrate judge stated that “McNac has alleged no
state[-]created impediment that prevented him from timely raising his claims
under 2244(d)(1)(B).” The magistrate judge determined that the “almost four-
month delay in filing [McNac’s state postconviction] application does not suffice,
in and of itself, to raise a state-created impediment.” The magistrate judge cited
to Critchley v. Thaler, 586 F.3d 318, 320-21 (5th Cir. 2009), where this court
concluded that the state court clerk’s failure to timely file a prisoner’s state
postconviction application, coupled with the clerk’s mishandling of other
prisoners’ state postconviction applications, constituted a state-created
impediment. The magistrate judge also concluded that McNac was not entitled
to equitable tolling of the AEDPA limitations period because McNac did not
establish that he exercised due diligence in pursuing his rights. The magistrate
judge explained that McNac was aware that his state postconviction application
was filed on January 8, 2008, and that therefore he “knew or should have known
that he only had 128 days of the one-year period to act once the state habeas
proceedings concluded.”    The magistrate judge stated that McNac instead

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“waited 131 days following the denial of his state writ before mailing his federal
petition” and “provide[d] no explanation for the 131-day delay.” McNac objected
to the magistrate judge’s report and recommendation.
      The district court issued an order that adopted the findings, conclusions,
and recommendation of the magistrate judge and denied McNac a certificate of
appealability (“COA”). McNac filed a timely notice of appeal and moved in this
court for a COA. This court granted McNac a COA on the procedural issue of
whether the Dallas County District Court clerk’s office’s failure to timely process
McNac’s state postconviction application constituted a state-created impediment
entitling McNac to statutory tolling under 28 U.S.C. § 2244(d)(1)(B).
                                II. DISCUSSION
      We review de novo a district court’s dismissal of a habeas application as
time-barred under AEDPA. See Krause v. Thaler, 637 F.3d 558, 560 (5th Cir.
2011) (citation omitted). AEDPA establishes a one-year statute of limitations for
“an application for a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The limitations period
usually begins to run when the state court judgment becomes final after direct
appeal, or when the time for seeking such review expires. § 2244(d)(1)(A).
Under § 2244(d)(1)(B), however, the limitations period does not begin to run
until “the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action.” § 2244(d)(1)(B).
We have stated 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).
      In the instant case, McNac contends that the Dallas County District Court
clerk’s office received his application on September 10, 2007, but then

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maliciously “sat on” his application for four months before filing it on January
8, 2008.1 Citing Critchley v. Thaler, 586 F.3d 318, 320-21 (5th Cir. 2009), McNac
argues that the clerk’s office’s failure to timely process his application, “coupled
with [its] apparent failure to process petitions filed by other prisoners[,]
constituted a state-created impediment under 28 U.S.C.§ 2244(d)(1)(B).” He
asserts, therefore, that the AEDPA limitations period should be tolled from
September 10, 2007, until January 8, 2008, the duration of the state-created
impediment. If the limitations period were tolled for this four-month period,
McNac’s federal habeas petition would be timely.
       Thaler argues on appeal that McNac has failed to establish that the
packages that the certified mail return receipt indicates were received by the
clerk’s office on September 10, 2007, contained McNac’s state postconviction
application. Thaler next contends that, even if McNac has established that the
clerk’s office received his application on September 10, 2007, Critchley is
inapplicable to McNac’s case. Thaler states that Critchley was a “unique” case,
where this court held that there was a state-created impediment based on record
evidence that the clerk’s office not only failed to process Critchley’s application,
but also routinely failed to process applications by other prisoners.                      See
Critchley, 586 F.3d at 320. Thaler asserts that “McNac has provided no proof,

       1
          McNac has filed two motions to supplement the record on appeal with documents
pertaining to his timeliness claim. For instance, in his August 12, 2011 motion and in his
November 25, 2011 motion, McNac has attached the “green card,” or the certified mail return
receipt that indicates that the clerk’s office received his state postconviction application on
September 10, 2007. Because this evidence was considered by the district court, we grant
McNac’s motions to supplement the record on appeal with respect to this evidence. However,
in his November 25, 2011 motion, McNac has attached a letter dated February 16, 2011, that
he sent to the clerk’s office “seeking confirmation of delivery of service” of his state
postconviction application sent on September 6, 2007, and of two supplements sent on
February 10, 2008, and on April 7, 2008. Because this evidence was not presented to the
district court, we deny McNac’s November 25, 2011 motion to supplement the record on appeal
with respect to this evidence. See McIntosh v. Partridge, 540 F.3d 315, 327 (5th Cir. 2008) (“As
a general rule, this court will not enlarge the record on appeal with evidence not before the
district court.”) (citation and internal quotation marks omitted).

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save his own self-serving allegations, that Dallas County has a similar practice
of routinely failing to process prisoner filings.” Furthermore, Thaler argues that
McNac has failed to demonstrate that the clerk’s office’s delay in filing his
application prevented him from timely filing his federal habeas petition.
      In this case, construing the record evidence and inferences therefrom in
favor of McNac, we determine that the clerk’s office received McNac’s state
postconviction application on September 10, 2007, but did not file it until
January 8, 2008. See Critchley, 586 F.3d at 320 (stating that the court gave
“Critchley the benefit of the doubt as well as reasonable inferences from the
record”). However, despite the clerk’s office’s four-month delay in processing
McNac’s application, we conclude that McNac has not demonstrated that he is
entitled to statutory tolling under § 2244(d)(1)(B). McNac cites to Critchley to
support his argument that he is entitled to statutory tolling, yet his case is
distinguishable from Critchley on two main grounds.
      First, McNac has failed to demonstrate that the clerk’s office’s delay in
filing his application rises to the level of a constitutional deprivation of due
process as in Critchley. See Egerton, 334 F.3d at 436. In Critchley, we held that
the “state court’s failure to process [Critchley’s] application and others filed by
Critchley, coupled with its apparent failure to process petitions filed by other
prisoners constitutes a state-created impediment under § 2244(d)(1)(B).” 586
F.3d at 320 (emphasis added). Thus, the record evidence in Critchley that the
Hays County District Court clerk’s office had an “apparent practice of
mishandling prisoner filings” was crucial to its holding that there was a
constitutional deprivation of due process and a state-created impediment. Id.
at 319. In the instant case, however, McNac has failed to present any evidence
that the Dallas County District Court clerk’s office routinely fails to file




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prisoners’ applications.2 See Wickware v. Thaler, 404 F. App’x 856, 862 (5th Cir.
2010) (stating that Critchley “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”).
       Second, McNac has not demonstrated that the clerk’s office’s delay in filing
his state postconviction application prevented him from timely filing his federal
habeas petition. See Egerton, 334 F.3d at 436. In Critchley, the prisoner
attempted to file his state postconviction application in the Hays County District
Court clerk’s office in July 2003, with the AEDPA limitations period expiring in
September 2003. 586 F.3d at 319. However, the clerk’s office failed to process
that application, as well as his second application, until the clerk’s office finally
filed his third application in April 2005. Id. The clerk’s office’s failure to file
Critchley’s state postconviction application within the one-year statute of
limitations caused the AEDPA limitations period to expire. Id. at 319-20. Thus,
the Hays County District Court clerk’s office directly prevented Critchley from
filing a timely federal habeas petition.
       In contrast, in the instant case, the Dallas County District Court clerk’s
office filed McNac’s application within the one-year statute of limitations period.
McNac learned that his state postconviction application was filed late on
January 8, 2008, and McNac had approximately four months (128 days) after
that application was denied in which to file a timely § 2254 petition. However,
McNac waited 131 days to file his federal habeas petition. Thus, unlike in
Critchley, the clerk’s office’s delay in filing McNac’s application did not prevent


       2
          McNac cites to several cases to support his argument that the Dallas County District
Court clerk’s office routinely mishandles prisoner filings. However, these cases are not on
point, as they do not demonstrate that the clerk’s office fails to file prisoners’ applications. See
Gibson v. Dallas Cnty. Dist. Clerk, 275 S.W.3d 491 (Tex. Crim. App. 2009); Martin v. Hamlin,
25 S.W.3d 718 (Tex. Crim. App. 2000); McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim. App.
1992).

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McNac from timely filing a federal habeas petition. Cf. Krause, 637 F.3d at 561
(stating that to be entitled to statutory tolling under § 2244(d)(1)(B), the prisoner
must “show that the lack of adequate legal materials actually prevented him
from timely filing his habeas petition) (emphasis in original); Wood v. Spencer,
487 F.3d 1, 7 (1st Cir. 2007) (holding that the prisoner was not entitled to
statutory tolling under § 2244(d)(1)(B) because the prisoner “had the power to
blunt the effect of any state-created impediment,” and that the “impediment did
not ‘prevent’ him from the timely filing of an application for habeas relief”).
Based on the above analysis, we conclude that McNac is not entitled to
§ 2244(d)(1)(B) tolling, and we uphold the district court’s procedural
determination.
      McNac has also filed a motion to expand this court’s COA grant to include
several other issues on appeal. In this motion, McNac argues that he is entitled
to statutory tolling of the limitations period pursuant to 28 U.S.C. § 2244(d)(2).
Because McNac has “explicitly requested” that this court review this uncertified
issue, we will consider whether to expand the scope of the COA grant. See
United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). We may certify new
COA issues only if the ordinary COA requirements are met. Id. In order to
obtain a COA on this procedural ground, McNac must show that “jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling” and “that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
      Section 2244(d)(2) provides that 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.” (emphasis added). McNac contends that his
state postconviction application was “properly filed” when it was received by the

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Dallas County District Court clerk’s office on September 10, 2007, as evidenced
by the certified mail return receipt. Thus, McNac argues that the limitations
period was tolled from September 10, 2007 until May 20, 2009 (when the TCCA
denied his application), thus making his federal habeas petition timely.
       The Supreme Court has stated that an “application is ‘filed,’ as that term
is commonly understood, when it is delivered to, and accepted by, the
appropriate court officer for placement into the official record.” Artuz v. Bennett,
531 U.S. 4, 8 (2000); see id. (“A paper is filed when it is delivered to the proper
official and by him received and filed.”) (emphasis added) (citation and internal
quotation marks omitted). The Court stated that “an application is ‘properly
filed’ when its delivery and acceptance are in compliance with the applicable
laws and rules governing filings.” Id. (emphasis in original). McNac has
provided no support for his position that the delivery, alone, of a state
postconviction application to the clerk’s office renders that application “filed”
within the meaning of § 2244(d)(2). Indeed, the language of Artuz itself indicates
that the mere delivery of an application is not sufficient for filing; instead, the
appropriate court officer must receive the application and file it. Id. Because
reasonable jurists would not find this issue debatable, we deny McNac’s motion
to expand the COA grant on this issue. See Slack, 529 U.S. at 484.
       McNac has also moved to expand the COA grant to include the seven
constitutional claims raised in his federal habeas petition.                     Given our
determination that McNac’s federal habeas petition is time-barred, we deny his
request to expand the COA grant to include these constitutional claims.3


       3
         McNac also argues in his appellate brief that (1) the state trial court created an
impediment by violating Texas Code of Criminal Procedure article 11.07 by failing to timely
provide the TCCA with his state habeas application and that (2) he is entitled equitable
tolling. Neither the district court nor this court granted a COA on either of these issues. As
McNac did not expressly move to expand the COA grant to include these issues, we do not
consider them. See Kimler, 150 F.3d at 431.

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                           III. CONCLUSION
     For the foregoing reasons, we AFFIRM the district court’s judgment
dismissing McNac’s habeas petition as time-barred. We DENY McNac’s motion
to expand the COA grant. We GRANT McNac’s August 12, 2011 motion to
supplement the record on appeal, and we GRANT in part and DENY in part
McNac’s November 25, 2011 motion to supplement the record on appeal.




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