     Case: 13-31082   Document: 00513045447    Page: 1   Date Filed: 05/15/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 13-31082                   United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
LARRY THOMAS, JR.,                                                May 15, 2015
                                                                 Lyle W. Cayce
             Petitioner - Appellant                                   Clerk

v.

JERRY GOODWIN, Warden, David Wade Correctional Center,

             Respondent - Appellee




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


Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Louisiana state prisoner Larry Thomas, Jr. appeals the dismissal of his
28 U.S.C. § 2254 petition as untimely.      For the reasons that follow, we
AFFIRM.
                 FACTS AND PROCEDURAL HISTORY
      Thomas was convicted of armed robbery by a jury in 2006 and sentenced
to fifty years imprisonment. On direct appeal, the Louisiana Second Circuit
Court of Appeal affirmed his conviction on August 15, 2007. State v. Thomas,
42,322, p. 10 (La. App. 2 Cir. 8/15/07); 962 So. 2d 1119, 1126. Pursuant to
Louisiana Supreme Court Rule X, § 5(a), Thomas had thirty days to file a direct
review writ application with the Louisiana Supreme Court. Thomas alleges
     Case: 13-31082       Document: 00513045447         Page: 2    Date Filed: 05/15/2015



                                      No. 13-31082
that he filed an application on August 30, 2007, within the time for doing so.
However, on November 20, 2007, the Louisiana Supreme Court’s Central Staff
sent Thomas a form letter informing him that his “papers” were being returned
to him “unfiled.” 1 The letter stated: “We cannot evaluate your complaints
unless you furnish us with the required documentation . . . .” By the date of
that letter, the thirty-day window for filing a direct review writ application had
expired.
       On January 8, 2008, Thomas sent documents to the Louisiana Supreme
Court, which were received, filed, and docketed by the court on February 12,
2008. 2 On October 24, 2008, the Louisiana Supreme Court denied Thomas’s
writ application in a one-word denial. State ex rel. Thomas v. State, 2008-0316
(La. 10/24/08); 992 So. 2d 1031, 1032. Thomas subsequently applied for state
post-conviction relief, which was unsuccessful. 3 Thomas then filed a § 2254
application in the United States District Court, which was postmarked August
16, 2012. The magistrate judge recommended that Thomas’s application be
dismissed as time-barred, and the district court agreed. The district court
noted that the timeliness determination hinged on “whether Thomas’s writ



       1  As the magistrate judge noted, she initially ordered Thomas to provide a dated copy
of his Louisiana Supreme Court writ application. The only evidence that Thomas produced
in response to this request was a document indicating that he filed a writ application on
January 8, 2008. After the magistrate judge issued a Report and Recommendation
recommending dismissal of Thomas’s petition, Thomas, for the first time, produced the writ
application dated August 30, 2007. Only later, in response to the magistrate judge’s request
that Thomas explain why his August 30, 2007 writ application was not postmarked and
received by the Louisiana Supreme Court until January 2008, did Thomas produce the letter
from Central Staff.
        2 It is not entirely clear what documents Thomas sent on January 8, 2008. However,

a letter from the Louisiana Supreme Court dated February 19, 2008, acknowledged receipt
of his “filing,” which “was metered on 1/8/2008.”
        3 In total, his post-conviction process spanned about thirty-eight months. Thomas

initially filed for post-conviction relief on May 29, 2009, and the Louisiana Supreme Court
denied his post-conviction writ application on July 27, 2012. State ex rel. Thomas v. State,
2011-2758 (La. 7/27/12); 93 So. 3d 599.
                                             2
    Case: 13-31082      Document: 00513045447        Page: 3    Date Filed: 05/15/2015



                                    No. 13-31082
application dated August 30, 2007, and purportedly mailed on September 4,
2007, was a timely petition for direct review under [Louisiana] Supreme Court
Rule X despite being returned unfiled.” The district court emphasized that as
of November 20, 2007, when Central Staff sent Thomas the letter, “Thomas did
not have a properly filed pleading being considered by the Louisiana Supreme
Court.” The district court determined that Thomas’s conviction became final
on the last day that Thomas could have timely petitioned the Louisiana
Supreme Court for further direct review and that the one-year limitations
period, under § 2244(d)(1)(A), expired one year later. 4 The district court also
determined that Thomas had not demonstrated that he was entitled to
equitable tolling.
      Thomas filed a timely notice of appeal and moved for a certificate of
appealability (“COA”), which the district court denied. Thomas argued, and
still argues, that his August 2007 writ application, which was returned as
unfiled, should be considered a timely-filed writ application, and, thus, his
conviction did not become final until after the Louisiana Supreme Court denied
that application. Thomas also argues that the Central Staff letter should be
construed as having given him an extension of time to file his direct review
writ application. This court subsequently granted Thomas a COA “on the issue
whether the district court erred in determining the date upon which the one-
year limitations period commenced under § 2244(d)(1)(A).” The court also
instructed the parties to “include an analysis of whether the Louisiana
Supreme Court’s ruling was a ruling on the merits and an implicit grant of
leave to file an out-of-time appeal.”



      4  The district court calculated these dates to be September 15, 2007 and September
15, 2008. However, thirty days after the Louisiana Second Circuit affirmed Thomas’s
conviction would have actually been September 14, 2007. This one-day discrepancy does not
affect our analysis.
                                           3
    Case: 13-31082     Document: 00513045447      Page: 4   Date Filed: 05/15/2015



                                  No. 13-31082
                                 DISCUSSION
      “This court reviews a district court decision denying a habeas petition on
procedural grounds de novo.” Butler v. Cain, 533 F.3d 314, 316 (5th Cir. 2008).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes “[a]
1-year period of limitation” for state prisoners to file for federal habeas relief,
which “run[s] from the latest” of four specified dates. 28 U.S.C. § 2244(d)(1).
The first of those dates is relevant to this case: “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review[.]” § 2244(d)(1)(A). When, as in the present case, a
petitioner does not pursue direct review all the way to the United States
Supreme Court, “the judgment becomes final at the ‘expiration of the time for
seeking such review’—when the time for pursuing direct review in [the U.S.
Supreme Court], or in state court, expires.” Gonzalez v. Thaler, 132 S. Ct. 641,
653-54 (2012). This court has previously explained that “AEDPA, not state
law, determines when a judgment is final for federal habeas purposes.” Causey
v. Cain, 450 F.3d 601, 606 (5th Cir. 2006) (citation and internal quotation
marks omitted). However, we look to state law to determine how long a
prisoner had to file a direct appeal, which is a necessary part of the finality
inquiry. Butler, 533 F.3d at 317.
      Louisiana Supreme Court Rule X, § 5(a) provides that “[a]n application
seeking to review a judgment of the court of appeal . . . shall be made within
thirty days of the mailing of the notice of the original judgment of the court of
appeal.” The Rule also states that “[n]o extension of time therefor will be
granted.” La. Sup. Ct. R. X, § 5(a). In Butler v. Cain, this court discussed Rule
X, § 5(a) in the context of analyzing when a petitioner’s Louisiana state
conviction became final under § 2244(d)(1)(A). 533 F.3d at 316. In Butler, the
petitioner filed a direct review writ application with the Louisiana Supreme
Court, which he conceded was untimely. Id. at 319 n.2. About five months
                                        4
     Case: 13-31082      Document: 00513045447        Page: 5     Date Filed: 05/15/2015



                                     No. 13-31082
later, the Louisiana Supreme Court denied his application with a one-word
denial. Id. at 316, 318. This court found that “Butler’s time for seeking further
review of his state conviction expired when he did not within thirty days of the
Louisiana Court of Appeal’s June 24, 1998 decision, challenge that decision in
the state Supreme Court” and that July 24, 1998 was the date that his
conviction became final for the purposes of § 2244(d)(1). Id. at 317. The
petitioner argued that because the Louisiana Supreme Court had discretion to
consider his late writ application and because, he claimed, the Court’s denial
of his application was on the merits, the time for seeking direct review did not
expire until after the Louisiana Supreme Court denied his writ. Id. at 318.
This court disagreed and refused to construe the Louisiana Supreme Court’s
one-word denial as a decision on the merits. Id. at 318, 319 n.2. This court
found no indication that the petitioner requested an extension of time or that
the Louisiana Supreme Court granted one and emphasized that if the
Louisiana Supreme Court had considered the petitioner’s application on the
merits, it would have done so in violation of its own explicit rule prohibiting
extensions of the thirty-day deadline. Id. at 319.
      In the present case, Thomas is in the same position as the petitioner in
Butler. Although Thomas allegedly sent something to the Louisiana Supreme
Court within the thirty-day deadline, what he sent was deficient and could not
be evaluated by the court. We will not construe Thomas’s filing as a timely
writ application when the Louisiana Supreme Court’s Central Staff explicitly
refused to do the same. Further, the Central Staff’s form letter provides no
indication that the Louisiana Supreme Court granted Thomas leave to file an
out-of-time direct review writ application. 5 Cf. Jimenez v. Quarterman, 555


      5  In Wilson v. Cain, this court determined that a defendant’s Louisiana state
conviction became final, under § 2244(d)(1)(A), when the Louisiana Supreme Court denied
his request for rehearing, even though a Louisiana Supreme Court rule explicitly prohibited
                                            5
     Case: 13-31082        Document: 00513045447           Page: 6     Date Filed: 05/15/2015



                                        No. 13-31082
U.S. 113, 121 (2009) (“[W]here a state court grants a criminal defendant the
right to file an out-of-time direct appeal during state collateral review, but
before the defendant has first sought federal habeas relief, his judgment is not
yet ‘final’ for purposes of § 2244(d)(1)(A).”). Instead, the generic letter simply
notified him that his papers were being returned “unfiled.” As the district
court correctly explained, “as of November 20, 2007, Thomas did not have a
properly filed pleading being considered by the Louisiana Supreme Court.”
When Thomas mailed his writ application to the Louisiana Supreme Court on
January 8, 2008, his writ application was nearly four months late, and we are
bound by Butler to hold that Thomas’s conviction became final when the thirty-
day time limit for seeking review by the Louisiana Supreme Court expired. 6


consideration of such requests. 564 F.3d 702, 705, 707 (5th Cir. 2009). The court emphasized
that “Louisiana courts do not invariably apply Louisiana Supreme Court Rule IX, § 6 to
procedurally bar motions for rehearing” and cited several cases in which the Louisiana
Supreme Court granted rehearing motions despite the rule prohibiting their consideration.
Id. at 705. Significantly, unlike the petitioner in Wilson, Thomas has offered no evidence or
case citations indicating that when faced with timely but incomplete writ applications, the
Louisiana Supreme Court declines to apply Louisiana Supreme Court Rule X, § 5(a), and
instead grants leave to file out-of-time writ applications. There is also no evidence in the
present record, and no language in the Central Staff form letter, indicating the Louisiana
Supreme Court did so here. Cf. Wilson, 564 F.3d at 705 (emphasizing that one of the justices
voted to grant the request for rehearing, despite the rule against consideration of such
requests).
        6 The Louisiana Supreme Court sometimes converts untimely writ applications into

applications for post-conviction relief. See State v. Robinson, 2004-1081, p.1 (La. 11/15/04);
888 So. 2d 767, 767-68 (Calogero, C.J., concurring) (“Although the application is untimely as
a matter of La. S.Ct. Rule X, § 5(a), and the court of appeal’s decision is therefore final on
direct review, this court has the authority to review the merits of a defendant’s constitutional
claims because Louisiana law governing collateral attack on a final conviction provides a
narrow exception to the finality of claims fully litigated on direct appeal.” (citation omitted));
State ex rel. Hall v. State, 99-0326 (La. 9/24/99); 871 So. 2d 1071, 1071 n.1 (per curiam)
(“Rather than requiring relator to present the same arguments again to the lower courts by
post-conviction application, this court’s use of the Jacobs procedure in effect treated the
application as one for post-conviction relief, which the lower court presumably would have
denied because they had rejected the same arguments on direct review.”). It is not clear
whether this was done in the present case. If the Louisiana Supreme Court did consider
Thomas’s writ application as an application for post-conviction relief, its nearly eight-month
consideration of Thomas’s application would not affect the date upon which Thomas’s
conviction became final—his conviction was still final when the thirty-day time limit for
                                                6
     Case: 13-31082        Document: 00513045447           Page: 7     Date Filed: 05/15/2015



                                        No. 13-31082
                                      CONCLUSION
       The district court was correct in its determination of the date upon which
the one-year limitations period commenced under § 2244(d)(1)(A). Thomas’s
conviction became final thirty days after the Louisiana Second Circuit affirmed
his conviction on direct appeal. On that date, Thomas’s time for seeking direct
review by the Louisiana Supreme Court expired and the § 2244(d)(1)
limitations period began to run. Accordingly, we AFFIRM the district court’s
dismissal of Thomas’s § 2254 application.




seeking direct review expired. See Butler, 533 F.3d at 320; see also Hall, 871 So. 2d at 1071
(explaining that when the Louisiana Supreme Court converts and reviews an untimely writ
application as a post-conviction application it is “not as a step in direct review”). However,
the court’s consideration of his application, if deemed a “properly filed” post-conviction
application under § 2244(d)(2), would toll his § 2244(d)(1) limitation period. See § 2244(d)(2)
(“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.”). Because neither party has
suggested that Thomas’s writ application should be considered a properly filed post-
conviction application for § 2244(d)(2)’s tolling purposes, and because the COA was not
granted on that issue, we decline to resolve this question. See United States v. Scruggs, 691
F.3d 660, 666 (5th Cir. 2012) (“We do not consider claims raised for the first time on appeal
or issues not included in a COA.”); Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999)
(“Issues not raised in the brief filed in support of [petitioner’s] COA application are waived.”).
                                                7
