     Case: 12-30252    Document: 00512285477       Page: 1   Date Filed: 06/24/2013




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

                                                                     FILED
                                                                    June 24, 2013

                                   No. 12-30252                     Lyle W. Cayce
                                                                         Clerk

PAUL T. CLARKE,

                                             Petitioner-Appellant
v.

STEVE RADER, Warden,

                                             Respondent-Appellee



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



Before STEWART, Chief Judge, BENAVIDES and HIGGINSON, Circuit Judges.
BENAVIDES, Circuit Judge:
      In this case, Paul T. Clarke, Louisiana prisoner # 337576, appeals the
district court’s denial of his application for a writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254. The district court denied Clarke’s § 2254 petition because
it was filed after the one-year limitations period of § 2244(d)(1)(A). This court
granted Clarke’s motion for a certificate of appealability (“COA”) to decide
whether Clarke is entitled to either statutory or equitable tolling of the one-year
limitations period. We affirm the district court’s judgment.
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                                  No. 12-30252

                FACTUAL AND PROCEDURAL HISTORY
      A Louisiana jury convicted Clarke in March 2004 of five counts of armed
robbery and one count of conspiracy to commit armed robbery. On June 18,
2004, Clarke was sentenced to 50 years in prison on each armed robbery count
and 20 years for the conspiracy count, with the sentences to be served
concurrently. On direct appeal, an intermediate state appellate court affirmed
Clarke’s conviction and sentence on November 9, 2005, and the Louisiana
Supreme Court denied Clarke’s request for supervisory review on September 1,
2006. For purposes of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Clarke’s conviction became final on November 30, 2006, which was
90 days after the Louisiana Supreme Court’s denial of supervisory review. See
28 U.S.C. § 2244(d)(1)(A); Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003).
      On August 26, 2007, nearly nine months after his conviction became final,
Clarke filed a pro se application for post-conviction relief (“PCR”) in the state
trial court, which the trial court dismissed. Clarke’s first writ application
seeking supervisory review, filed with the intermediate state appellate court on
July 12, 2008, was denied for procedural reasons on October 14, 2008. His
second application, filed on November 10, 2008, was denied on the merits on
February 26, 2009. Clarke then filed a writ application with the Louisiana
Supreme Court on March 20, 2009, and the Court denied the application on
January 29, 2010.
      It is undisputed that Clarke did not receive notification of the Louisiana
Supreme Court’s January 29, 2010 denial through direct communications with
the Court. Instead, as his counsel stated at oral argument, Clarke contacted his
counsel in February 2010 to inquire into the status of his March 20, 2009 writ
application. Thereafter, Clarke’s counsel visited the Louisiana Supreme Court’s
website, where counsel learned of the January 29, 2010 denial through an



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                                        No. 12-30252

on-line news release announcing recent writ denials. That same month, counsel
printed and mailed Clarke a copy of the denial.1
       On April 30, 2010, 91 days after the denial, Clarke filed a § 2254 federal
habeas corpus petition alleging various constitutional violations.2 Magistrate
Judge Christine Noland recommended denying Clarke’s § 2254 petition as
untimely, finding that Clarke had filed his petition approximately 45 days after
the AEDPA’s one-year limitations period had expired.                        Specifically, the
magistrate judge found that at least 410 un-tolled days had elapsed based on: (1)
the 269 days between the time Clarke’s conviction became final on November 30,
2006 and Clarke’s PCR application filing on August 26, 2007; (2) at least 50 days
resulting from Clarke’s improper filing of his initial writ application with the
intermediate state appellate court on July 12, 2008; and (3) the 91 days between
the Louisiana Supreme Court’s denial of Clarke’s writ application on January
29, 2010 and his § 2254 filing on April 30, 2010. See Clarke v. Rader, No.
10-0308-JJB-CN, 2012 WL 589207, at *3, *6 (M.D. La. Jan. 20, 2012).
       Clarke objected to the magistrate judge’s report and recommendation,
arguing that his petition was timely because he properly filed his initial writ
application. Alternatively, Clarke argued that even if he had not properly filed,
he was entitled to tolling of the 91 days during which the Louisiana Supreme
Court did not send notice of its January 29, 2010 writ denial. The district court
approved the magistrate judge’s recommendation and denied Clarke’s § 2254
petition on February 17, 2012. The district court also denied Clarke a COA.


       1
        Although Clarke’s counsel did not specify the exact date in February when she mailed
the announcement to Clarke, prison mail logs indicate that Clarke received correspondence
from counsel on February 17, 2010. R. at 914.
       2
         Clarke alleged Fifth, Sixth, and Fourteenth Amendment violations arising from (1)
the denial of an attorney during interrogations, (2) the denial of his motion to suppress his
confession, (3) cumulative trial court errors, (4) ineffective assistance of counsel, and (5) the
State’s reference to a co-defendant’s statement.

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       This court granted Clarke’s motion for a COA on the following two
questions: (1) whether Clarke is entitled to statutory tolling of the one-year
limitations period pursuant to § 2244(d)(1)(B); and (2) whether Clarke is entitled
to equitable tolling of the one-year limitations period.3 Thus, the only issue on
appeal is whether the State’s failure to notify Clarke of the Louisiana Supreme
Court’s January 29, 2010 writ denial entitles Clarke to either statutory or
equitable tolling of the 91 days between the January 29, 2010 denial and
Clarke’s § 2254 filing on April 30, 2010.
       The timeline of events relevant to Clarke’s appeal can be summarized as
follows:
       11/30/2006            Clarke’s state conviction becomes final
       08/26/2007            PCR application filed (269 un-tolled days)
       07/12/2008            Writ improperly filed with state appellate court
       11/10/2008            Writ properly filed (50 un-tolled days)
       03/20/2009            Writ filed with Louisiana Supreme Court
       01/29/2010            Louisiana Supreme Court denies writ
       02/2010               Clarke’s counsel learns of denial and mails notice
       04/30/2010            Clarke files § 2254 petition (91 un-tolled days)


       3
          At oral argument, the State claimed that Clarke waived his statutory tolling
argument because it was not raised before the district court. See BP Exploration Libya Ltd.
v. Exxonmobil Libya Ltd., 689 F.3d 481, 493 n.9 (5th Cir. 2012). Upon close review of the
record, however, it is clear that Clarke raised the argument. It is true that Clarke’s initial
reply to the State’s answer in opposition to his § 2254 petition merely alleged that the petition
was timely without invoking either statutory or equitable tolling. But later, in his reply to a
supplemental response filed by the State, Clarke cited § 2244(d)(1)(B) and Egerton v. Cockrell,
334 F.3d 433, 436 (5th Cir. 2003), to support his argument that “[t]he failure of the Louisiana
State Supreme Court to notify Clarke of the decision on his state habeas application is the
type of ‘extraordinary circumstance’ that ‘created an impediment’ to Clarke’s filing of the
instant petition for habeas relief.” R. at 685–86. Although presented in a section of Clarke’s
reply entitled “equitable tolling,” this argument unmistakably relates to statutory tolling.
Furthermore, Clarke included identical language in his objection to the magistrate judge’s
report. Id. at 850–51. Accordingly, because arguments relating to both statutory and
equitable tolling were before the district court, we address both arguments in this opinion.

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                          STANDARD OF REVIEW
      This court reviews de novo a district court’s decision regarding statutory
tolling of the AEDPA’s one-year limitations period. Manning v. Epps, 688 F.3d
177, 182 (5th Cir. 2012).     We review a district court’s decision regarding
equitable tolling for abuse of discretion, although any conclusions of law
underlying the district court’s decision are reviewed de novo. Id.


                                   ANALYSIS
I.    Statutory Tolling
      Under the AEDPA, a federal habeas petitioner must file a § 2254 habeas
application within one year from the date a state court judgment becomes “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).       The commencement of this one-year
limitations period is tolled, however, if an applicant is “prevented from filing”
due to an “impediment to filing an application created by State action in
violation of the Constitution or laws of the United States.” Id. § 2244(d)(1)(B).
In such a case, the limitations period is tolled until the state-created impediment
“is removed.” Id. A petitioner alleging a state-created impediment has the
burden to 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 her report, the magistrate judge recommended denying Clarke’s habeas
petition as untimely without discussing Clarke’s eligibility for statutory tolling,
and the district court approved the report. Clarke claims on appeal that he is
entitled to statutory tolling because the State prevented him from filing his
§ 2254 petition by failing to notify him of the Louisiana Supreme Court’s
January 29, 2010 writ denial. Specifically, Clarke asserts that (1) the State’s
failure to deliver notice of the January 29, 2010 denial “prevented Clarke from

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filing his petition;” (2) this failure was an “action” of “either the state supreme
court or the department of corrections’ employees;” and (3) this action was a
“constitutional violation” because “the filing of a habeas petition is directly
connected to a prisoner’s Constitutional right of access to the courts,” and the
State denied that right of access by delaying notice. Br. of Pet’r-Appellant
11–12.
       We have serious reservations about whether the State’s failure to notify
Clarke of the January 29, 2010 denial provides a basis for a statutory tolling
claim rather than merely an equitable tolling claim. See Critchley v. Thaler, 586
F.3d 318, 321 n.3 (5th Cir. 2009) (“[W]hen the state fails to provide notice of its
ruling on a state habeas petition to the affected petitioner as is required by
Texas law, equitable tolling rules govern that situation.”); see also Williams v.
Thaler, 400 F. App’x. 886, 889 (5th Cir. 2010) (observing that it is “unclear”
whether a state’s failure to provide notice of a writ denial “is a violation of
constitutional or federal law under § 2244(d)(1)(B)”). But see Earl v. Fabian, 556
F.3d 717, 726–27 (8th Cir. 2009) (holding that lack of notice of finality of state
conviction “could be” state-created impediment in violation of constitutional
right to due process).
       Yet regardless of whether a state’s failure to notify a habeas petitioner of
a state supreme court’s writ denial could trigger statutory tolling under certain
circumstances, the facts of Clarke’s case do not entitle him to statutory tolling.
We reach the same result even assuming that the State was singularly at fault
for failing to deliver notice of the January 29, 2010 denial to Clarke.4 As

       4
         For the first time on appeal, the parties dispute who is to blame for the absence of
notice from the State. To support its argument that Clarke was at fault, the State moved to
supplement the record on appeal pursuant to Rule 10(e) of the Federal Rules of Appellate
Procedure with evidence relating to Clarke’s transfer from the Louisiana State Penitentiary
in Angola, Louisiana to the Dixon Correctional Institute in Jackson, Louisiana while his state
habeas application was pending. This court granted the State’s motion, and Clarke moved for
reconsideration. Clarke also filed a separate motion to supplement the record with evidence

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described above, Clarke’s counsel discovered the January 29, 2010 denial in
February 2010, and counsel mailed Clarke notice of the denial that same month.
By the magistrate judge’s calculation, if Clarke had filed his § 2254 petition in
February, his petition would have been timely. Thus, Clarke has not shown that
the State’s failure to notify him of the January 29, 2010 denial played any role
in his failure to timely file since Clarke’s counsel mailed him notice within weeks
of the denial and before § 2244(d)(1)(A)’s one-year limitations period expired.
       In fact, even if Clarke had received notice of the denial directly from the
State on January 29, 2010, there is nothing in the record suggesting that Clarke
would have filed his § 2254 petition any earlier than he did. By all appearances,
after his counsel mailed him notice of the denial in February, Clarke waited
until April 30, 2010 to file his § 2254 petition because he believed his petition
was still timely at that point, not because of any delay in notice. Indeed, the 269
un-tolled days between the time Clarke’s state conviction became final in
November 2006 and Clarke’s PCR filing in August 2007, combined with the 91
un-tolled days between the January 29, 2010 denial and Clarke’s § 2254 filing,
would have amounted to only 360 un-tolled days. Thus, Clarke’s petition would
have been timely but for the fact that he had improperly filed his first writ
application with the intermediate state appellate court on July 12, 2008.
Clarke’s erroneous belief that his initial writ application was properly filed may
explain why Clarke did not file his § 2254 petition until approximately two
months after his counsel discovered the writ denial in February 2010.
       In sum, Clarke has not sustained his burden to show it was the State’s
failure to notify him of the January 29, 2010 denial that prevented him from


relating to his prison transfer. Because the State’s supplemental evidence would have no
impact on the disposition of this case, see Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d
373, 379 n.11 (5th Cir. 2010), we GRANT Clarke’s motion for reconsideration and DENY the
State’s motion to supplement the record. For the same reason, we DENY Clarke’s motion to
supplement the record.

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timely filing his petition; instead, it was, in all probability, Clarke’s mistaken
assumption that he had until May 2010 to timely file. Accordingly, because he
has not shown that state action prevented him from filing his § 2254 petition, we
hold that Clarke is not entitled to statutory tolling.
II.    Equitable Tolling
       Even if a habeas petitioner is not eligible for statutory tolling,
§ 2244(d)(1)(A)’s one-year limitations period can still be equitably tolled since it
is not a jurisdictional bar. United States v. Patterson, 211 F.3d 927, 930 (5th Cir.
2000); see also Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). To be entitled
to equitable tolling, a petitioner has the burden of showing “(1) that he ha[d]
been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Mathis v. Thaler,
616 F.3d 461, 474 (5th Cir. 2010) (alteration in original) (quoting Holland, 130
S. Ct. at 2562) (internal quotation marks omitted); see also Phillips v. Donnelly,
216 F.3d 508, 511 (5th Cir. 2000) (holding that petitioner seeking equitable
tolling bears burden of proof).
       Highlighting the doctrine’s limited scope, we have stated that “[e]quitable
tolling applies principally where the plaintiff is actively misled by the defendant
about the cause of action or is prevented in some extraordinary way from
asserting his rights.” Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999)
(internal quotation marks omitted). Because it is a discretionary doctrine,
however, this court’s determination of whether equitable tolling applies “turns
on the facts and circumstances of a particular case.” Fisher v. Johnson, 174 F.3d
710, 713 (5th Cir. 1999). For the same reason, “equitable tolling does not lend
itself to bright-line rules.”     Id.; see also Holland, 130 S. Ct. at 2562–63
(explaining need for flexibility in exercising equity power and cautioning against
“hard and fast adherence to more absolute legal rules” (internal quotation marks
omitted)).   Nonetheless, certain sources of delay in filing do not create

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                                  No. 12-30252

“extraordinary circumstances” warranting equitable tolling. For example, “a
garden variety claim of excusable neglect, such as a simple miscalculation that
leads a lawyer to miss a filing deadline does not warrant equitable tolling.”
Holland, 130 S. Ct. at 2564 (internal citations and quotation marks omitted).
Additionally, “delays of the petitioner’s own making do not qualify” for equitable
tolling. In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006).
      In her report, Magistrate Judge Noland found “no compelling reason to
recommend tolling,” Clarke, 2012 WL 589207, at *7, and the district court
approved the report. On appeal, Clarke argues that he is entitled to equitable
tolling because (1) the State’s failure to notify Clarke of the Louisiana Supreme
Court’s January 29, 2010 writ denial created an “exceptional circumstance,” and
(2) Clarke diligently pursued his rights. Br. of Pet’r-Appellant 16, 19.
      Under the facts of this case, we cannot say that the district court abused
its discretion in denying Clarke equitable tolling. Although this circuit has held
that “[l]ong delays in receiving notice of state court action may warrant equitable
tolling,” Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009), the length of
delay before Clarke had the opportunity to discover the Louisiana Supreme
Court’s writ denial was less than a month—from January 29, 2010 until
mid-February 2010, when Clarke’s counsel learned of the denial on-line and
mailed notice to him. Cf. Phillips, 216 F.3d at 511 (indicating that delay of four
months “could qualify for equitable tolling”). More importantly, regardless of the
length of the delay in notice, there is no evidence that this delay contributed to
Clarke’s untimely filing of his § 2254 petition.        As explained above, the
untimeliness of Clarke’s § 2254 petition appears to have resulted from his
mistaken belief that the one-year limitations period would not expire until May
2010. There is no indication that, had Clarke received notice earlier, he would
have filed his § 2254 petition before April 30, 2010.



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                                  No. 12-30252

       Because he has failed to explain how his delay in receiving notice of the
January 29, 2010 writ denial contributed in any way to his failure to timely file,
Clarke has not shown an “extraordinary circumstance” that “prevented timely
filing.”   Mathis, 616 F.3d at 474 (quoting Holland, 130 S. Ct. at 2562).
Accordingly, we hold that the district court did not abuse its discretion in
denying Clarke equitable tolling, and we need not reach the question of whether
Clarke diligently pursued his habeas corpus rights.


                                CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s judgment.




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