     Case: 08-40666 Document: 00511282017 Page: 1 Date Filed: 11/02/2010




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

                                                 FILED
                                                                          November 2, 2010

                                       No. 08-40666                         Lyle W. Cayce
                                                                                 Clerk

GLENN EARL WILLIAMS,

                                                   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 Eastern District of Texas
                                  No. 6:06-cv-00230


Before KING, GARWOOD and DAVIS, Circuit Judges.
PER CURIAM:*
       Glen Williams was convicted of sexual assault in Texas state court on
October 17, 2001 and is currently serving a 99-year sentence. Following denial
of his state petition for habeas corpus relief, Williams filed a petition seeking
habeas corpus relief in federal court, which the district court denied on the basis
that the petition was untimely. We granted a certificate of appealability on the
single issue of whether Williams’s federal habeas petition was timely filed. For


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40666

the reasons stated below, we vacate the district court’s dismissal and remand for
consideration of the merits.
                           I. FACTUAL BACKGROUND
       Glen Earl Williams1 was convicted of sexual assault in Texas state court
on October 17, 2001, and sentenced to 99 years in prison. Williams’s conviction
was affirmed on direct appeal on April 16, 2003. He did not file a petition for
discretionary review in state court.
       On March 11, 2004, Williams filed a state application for habeas corpus
relief with the Texas Court of Criminal Appeals (TCCA). The TCCA denied his
application on December 15, 2004 without a hearing or written order. According
to TCCA policy, the clerk of the TCCA was supposed to send Williams a
postcard, called a “white card,” advising him that his application had been
denied. Williams alleges he never received a white card.
       In December 2004, Williams began soliciting information from the TCCA
regarding the progress of his case. On December 17, 2004, two days after it had
denied his application, the TCCA advised Williams that his application was still
pending. On August 15, 2005, Williams again wrote to the TCCA asking about
the status of his application, and on August 23, 2005, the TCCA again advised
that the application was still pending. On December 11, 2005, Williams sent his
third request for the status of his application, and on December 19, 2005, the
TCCA again, incorrectly, advised Williams that his application was still pending.
       On March 8, 2006, Williams sent his fourth request for a status update.
The TCCA responded on March 16, 2006, and told Williams that his application
had been denied on December 15, 2004, fifteen months earlier. Prison mail
records reflect that Williams did not receive this letter until March 30, 2006.
Because the letter was inconsistent with the TCCA’s prior correspondence,


       1
        The district court’s docket and judgment in this case reflect that the petitioner’s name
is Glenn Earl Williams, but it appears from the record that his name is Glen Earl Williams.

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Williams wrote to the TCCA on April 3, 2006, asking it to clarify the status of his
case. On April 11, 2006, the TCCA responded to Williams, confirming that his
application had, in fact, been denied on December 15, 2004, and apologizing “for
any inconvenience the incorrect status letters sent to you may have caused.”
      Williams received the TCCA’s April 11, 2006 letter on April 14, 2006. He
immediately began preparing his federal habeas corpus petition, and on May 1,
2006, he sent a letter to the district court asking for permission to file his federal
petition “out of time.” The district court responded on May 10, 2006, that it
could not hear a request unless it was filed in a pending case. Williams filed his
federal habeas petition on May 15, 2006.
      The case was referred to a magistrate judge, who initially recommended
that the case be dismissed as time-barred. After Williams objected, asserting
that the statute of limitations should be either statutorily or equitably tolled, the
magistrate judge withdrew her report and asked the state to respond. Following
filings from the state and Williams, the magistrate judge again recommended
that Williams’s petition be dismissed as untimely. The magistrate judge did not
specifically find that Williams had, in fact, received the “white card” from the
TCCA in December 2004. Instead, she relied on prison mail records indicating
that Williams had received correspondence from the TCCA on December 23,
2004, and the TCCA clerk’s affidavit stating that the white card had been mailed
on December 15, 2004.
      The magistrate judge found that Williams was not entitled to equitable
tolling of the statute of limitations because he had not been diligent in pursuing
his rights. The magistrate judge came to this conclusion because Williams had
waited 300 days after his conviction became final before he filed his state habeas
application, and “nothing prevented Williams from filing his federal writ without
having received notice of the denial of his state writ.” The district court adopted



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the magistrate judge’s report and recommendations and dismissed Williams’s
petition.2
       After the district court denied Williams a certificate of appealability
(COA), we granted a COA to address whether Williams is entitled to statutory
tolling under 28 U.S.C. § 2244(d)(1)(B) or equitable tolling of the limitations
period.
                                   II. DISCUSSION
       Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a
federal petition for a writ of habeas corpus must be filed within one year of the
date on which a prisoner’s conviction becomes final. 28 U.S.C. § 2244(d)(1)(A).
The one-year time limitation is tolled, however, during the time that a properly
filed application for state habeas corpus relief is pending. 28 U.S.C. § 2244(d)(2).
       Williams’s conviction became final on May 16, 2003, at the expiration of
the thirty-day period during which he could have filed a petition for
discretionary review. See T EX. R. A PP. P. 68.2. When Williams filed his state
habeas petition, thereby tolling the limitations period, 300 days had passed on
the AEDPA one-year statute of limitations.
       Neither party disputes that Williams’s state habeas application ceased to
“pend” on December 15, 2004, when the TCCA denied his application. See
Phillips v. Donnelly, 216 F.3d 508, 511 n.3 (5th Cir. 2000). Therefore, as of that
date Williams had 65 days remaining to file his federal habeas petition.
Williams did not file his petition until May 15, 2006. Absent any further tolling,
Williams’s petition is barred by the AEDPA statute of limitations.
       Williams contends that the district court erred in refusing to toll the
statute of limitations because the TCCA’s misleading correspondence regarding
his state habeas application amounted to an “impediment to filing an

       2
          Because the district court adopted the magistrate judge’s report and recommendations
in full, our future references will be to the district court.

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application” under § 2244(d)(1)(B). Alternatively, he argues that he is entitled
to equitable tolling of the statute of limitations. We review de novo the district
court’s dismissal of a habeas petition on procedural grounds, but we review the
district court’s denial of equitable tolling for abuse of discretion.    Fierro v.
Cockrell, 294 F.3d 674, 679 (5th Cir. 2002).
A. Statutory Tolling
      The AEDPA limitations period is tolled if the petitioner faces an
“impediment to filing an application created by State action in violation of the
Constitution or laws of the United States.” 28 U.S.C. § 2244(d)(1)(B). Williams
argues that the TCCA’s repeated affirmations that his application was still
pending resulted in a state-created impediment that prevented him from filing
his federal habeas petition, and, therefore, the statute should have been tolled
until the TCCA correctly confirmed that his state application had been denied.
      In Critchley v. Thaler, 586 F.3d 318 (5th Cir. 2009), we recognized “the
interrelationship between the filing of federal and state habeas petitions.” Id.
at 320. In that case, we applied statutory tolling under § 2244(d)(1)(B) where
the state had effectively prevented the petitioner from filing his federal habeas
petition by failing to file his state habeas application even though the petitioner
had sent his application to the clerk for filing. Id. at 321. While the petitioner
could have taken his claims to federal court at any time, federal law required
him to exhaust his claims in state court. Id. at 320. Our holding in Critchley
demonstrates a state-created impediment to filing a state habeas application
may also amount to an impediment to filing a federal habeas petition under
§ 2244(d)(1)(B). But in this case, the state did not prevent Williams from filing
his claims, the state failed to notify Williams that his claims had been
exhausted.
      We are reluctant to consider whether a mistake on the part of a clerk at
the TCCA in misinforming Williams can amount to a violation of constitutional

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or federal law for the purposes of § 2244(d)(1)(B). It is also unclear whether the
state’s alleged violation—failure to provide accurate notice—is a violation of
constitutional or federal law under § 2244(d)(1)(B). In any event, we need not
decide whether the state action in this case prevented Williams from filing his
federal petition because we conclude that Williams is entitled to equitable tolling
of the AEDPA statute of limitations. See United States v. Lipscomb, 299 F.3d
303, 359 (5th Cir. 2002) (“It is a well-established canon of construction that
federal courts avoid addressing constitutional questions when possible.”).
B. Equitable Tolling
      The Supreme Court recently confirmed that the AEDPA statute of
limitations is not a jurisdictional bar, and it is subject to equitable tolling.
Holland v. Florida, 560 U.S. —, 130 S. Ct. 2549, 2560 (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 extraordinary circumstance
stood in his way’ and prevented timely filing.” Mathis v. Thaler, 616 F.3d 461,
474 (5th Cir. 2010) (quoting Holland, 130 S. Ct. at 2562). “Courts must consider
the individual facts and circumstances of each case in determining whether
equitable tolling is appropriate.” Alexander v. Cockrell, 294 F.3d 626, 629 (5th
Cir. 2002). The petitioner bears the burden of proving that he is entitled to
equitable tolling. Phillips, 216 F.3d at 511.
      1.    Diligence
      Williams must first demonstrate that he exercised diligence in pursuing
his federal rights. Holland, 130 S. Ct. at 2562; Mathis, 616 F.3d at 474. “The
diligence required for equitable tolling purposes, however, is ‘reasonable
diligence, not maximum feasible diligence.’” Mathis, 616 F.3d at 474 (quoting
Holland, 130 S. Ct. at 2565).
      To determine whether Williams exercised reasonable diligence in pursuing
his claims, we begin with a consideration of whether Williams did, in fact,

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receive notice of the TCCA’s denial of his writ in December 2004. The district
court did not specifically find that Williams received the white card purportedly
sent by the TCCA in December 2004, but it “call[ed] into question Williams’
April 3, 2006, alleged date of notice.” 3
       The state maintains that the TCCA sent, and Williams received, a white
card informing him of the TCCA’s denial of his state habeas application in
December 2004. We disagree with this interpretation of the facts. According to
the prison mail logs, Williams received only one piece of mail from the TCCA
that month, on December 22, 2004, which was delivered to Williams on
December 23, 2004. The state argues that this mail log entry related to the
white card. However, the TCCA sent a separate letter dated December 17, 2004,
which Williams marked as being received on December 23, 2004. The state does
not explain how the letter and the white card could produce only one entry in the
mail log; it simply notes that the prison mail logs do not reflect the content or
nature of the mail. Given that Williams received a piece of mail, which was not
the white card, corresponding to the December 22, 2004 entry in the mail log, it
strains credulity to find that this entry related to the white card.
       In support of its assertion that Williams received a white card in
December 2004, the state offered an affidavit from the current clerk of the TCCA
stating that a white card had been sent to Williams in December 2004, when she
was not the clerk.4 To apply equitable tolling, however, we need only find that

       3
        Williams claims that he did not receive the TCCA’s March 16, 2006 letter until April
3, 2006. The prison mail log confirms that Williams received a piece of mail from the TCCA
on March 29, 2006, which was delivered to him on March 30, 2006. Williams did not receive
another piece of mail from the TCCA until April 14, 2006. We find that the TCCA’s March 16,
2006 letter was likely delivered to Williams on March 30, 2006, and we will proceed on that
basis. Whether Williams received the letter on March 30 or April 3 is not dispositive.
       4
         The TCCA also produced a “copy” of the white card it supposedly sent to Williams.
Though dated December 15, 2004, the “copy” bears the name of the TCCA clerk in 2006, not
the clerk in 2004. As Williams notes, this “copy” is likely a “regenerated” card—it could not
have been generated in 2004 because it bears the wrong name for the TCCA clerk.

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Williams did not receive a white card, regardless of whether the TCCA actually
sent one. Further, Williams’s repeated requests for information regarding his
case between December 2004 and March 2006 belie the notion that Williams in
fact received notice that the TCCA had denied his petition on December 15,
2004.
        In light of the above evidence, we accept as true Williams’s contention,
made under oath, that he did not receive notice of the TCCA’s denial of his state
habeas application—and thus notice that the AEDPA statute of limitations had
ceased to toll—until he received the TCCA’s letter dated March 15, 2006, which
he received, at the earliest, on March 30, 2006.5 To accept the state’s argument
to the contrary would be against the great weight of the evidence.
        To be entitled to equitable tolling, a petitioner must demonstrate that he
“pursued the habeas corpus relief process with diligence and alacrity both before
and after receiving notification” that his state application was denied. Hardy v.
Quarterman, 577 F.3d 596, 598 (5th Cir. 2009) (internal quotation and alteration
omitted). In previous cases considering the diligence of prisoners who received
delayed notice of the denial of their state habeas applications, we have
emphasized that petitioners must be diligent in obtaining the status of their
state habeas applications so that they may properly ascertain when the AEDPA
statute ceased to toll. Stroman v. Thaler, 603 F.3d 299, 302 (5th Cir. 2010);
Hardy, 577 F.3d at 599–600. In Hardy, we held that the petitioner was entitled
to equitable tolling because he had sent three separate inquiries regarding the
status of his state petition, beginning eleven months after he filed the petition.


        5
         In other cases we have remanded to the district court for an evidentiary hearing to
determine when exactly the petitioner received notice of the denial of his state habeas
application. See Phillips, 216 F.3d at 511. We decline to do so here because an evidentiary
hearing would likely reveal no additional information and would waste judicial time and
resources. See Coker v. Quarterman, 270 F. App’x 305, 309 (5th Cir. 2008) (declining to
remand for an evidentiary hearing where the record was clear as to when the petitioner
received notice of the denial of his state habeas application).

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577 F.3d at 599–600. But, in Stroman, we held that the petitioner was not
entitled to equitable tolling because he had waited eighteen months to inquire
regarding the status of his state petition. 603 F.3d at 302.
      Though we are guided by this precedent, we are mindful of the dangers of
creating a rule regarding the specific timeframe in which a petitioner must
inquire regarding the status of his state habeas application in order to
demonstrate diligence. Rather, the circumstances of each case, taken together,
must determine whether a particular petitioner was diligent in pursuing his
claims and, therefore, entitled to equitable tolling. See Fisher v. Johnson, 174
F.3d at 713 (“[E]quitable tolling does not lend itself to bright-line rules.”);
Holland, 130 S. Ct. at 2563 (noting “equity’s resistance to rigid rules”).
      The circumstances of the present case demonstrate that Williams acted
diligently in pursuing his rights. Williams filed his state habeas petition on
March 11, 2004. He first inquired about the status of his application nine
months after filing, in December 2004.          Having been informed that the
application was still pending, Williams waited another eight months, until
August 2005, before inquiring again.         After again being informed that his
application was still pending, he waited five months to inquire a third time, in
December 2005. The TCCA again informed him that his application was still
pending. Williams waited just three more months, until March 2006, to send his
fourth inquiry, to which the TCCA finally responded that his application had
been denied fifteen months earlier.       Not only did Williams wait less time
between his inquiries than the petitioner in Hardy waited to make his first
inquiry, but Williams also pursued the status of his application with ever-
increasing vigilance to ensure he did not miss the AEDPA statute of limitations.
      Williams must also demonstrate that he quickly pursued federal habeas
relief after receiving delayed notice of the denial of his state habeas application.
Hardy, 577 F.3d at 598; see also Phillips, 216 F.3d at 511 (finding diligence

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where the petitioner filed his federal petition within three days of receiving
notice of the state’s denial). Here, Williams acted diligently in filing his federal
habeas petition once he learned that his state application had been denied.
Within a week of receiving the TCCA’s March 15, 2004 letter informing him that
his application had been denied, Williams sent a follow-up letter to the TCCA to
clarify. He received the TCCA’s April 11 response on April 14, 2006. Just two
weeks later, on May 1, 2006, Williams filed a motion requesting “permission to
file an out-of-time writ of habeas corpus” due to “extraordinary circumstances.”
On May 10, 2006, the district court notified Williams that it had rejected his
filing because it was not filed in a pending case. Five days later, on May 15,
2006, Williams tendered his federal habeas petition to prison officials for
mailing.6
       The district court faulted Williams for seeking clarification from the TCCA
instead of immediately proceeding to federal court. However, Williams had been
notified three times, all after the denial of his state habeas application, that the
application was still pending. His reasonable assumption that the TCCA was
mistaken in its March 15, 2006 letter, rather than that the TCCA was mistaken
in its three previous letters, does not demonstrate a lack of diligence. See
Holland, 130 S. Ct. at 2565 (petitioners must act with “reasonable diligence, not
maximum diligence”).7
       We conclude that Williams acted with “diligence and alacrity” in pursuing
his federal habeas rights given “his prisoner and pro se status and the fact that



       6
         Pro se prisoner pleadings are deemed filed when they are tendered to prison officials
for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
       7
          The district court and the state also faulted Williams for waiting to file his state
habeas application until 300 days of the AEDPA statute of limitations had passed. We note
that even if Williams had filed his state application on the day after his conviction became
final, his federal petition would still be untimely because the TCCA misled him about the
status of his state application for over a year.

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the TCCA had the legal duty to notify him” that his state application had been
denied. Hardy, 577 F.3d at 599.
      2.    Extraordinary Circumstances
      It is not enough for Williams to demonstrate that he diligently pursued his
rights; he must also show that “some extraordinary circumstance stood in his
way and prevented timely filing” because a “garden variety claim of excusable
neglect” will not support equitable tolling. Holland, 130 S Ct. at 2562, 2564
(internal quotations omitted). Equitable tolling is available only in “rare and
exceptional circumstances where it is necessary to preserve a plaintiff’s claims
when strict application of the statute of limitations would be inequitable.”
Fierro, 294 F.3d at 682 (internal quotation and alteration omitted).             “A
petitioner’s failure to satisfy the statute of limitations must result from external
factors beyond his control; delays of the petitioner’s own making do not qualify.”
In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006).
      Our delayed notice cases demonstrate that the simple fact that a petitioner
did not receive notice that the AEDPA limitations period had ceased to toll may
be an extraordinary circumstance that warrants equitable tolling. Phillips, 216
F.3d at 511; Hardy, 577 F.3d at 598. In addition, equitable tolling may apply
“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 omitted).
Equitable tolling is also appropriate in cases where “[the] court has led the
plaintiff to believe that she had done everything required of her.” United States
v. Patterson, 211 F.3d 927, 931 (5th Cir. 2000) (internal quotation omitted); see
also Prieto v. Quarterman, 456 F.3d 511, 515 (5th Cir. 2006) (applying equitable
tolling where petitioner relied on district court’s order extending deadline to file
federal habeas petition).



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       In the instant case, the TCCA letters were “crucially misleading.” Prieto,
456 F.3d at 515.         The TCCA, not once but on three separate occasions,
represented to Williams that the AEDPA limitations period continued to be
tolled by telling him that his state habeas application was still pending.
Williams “relied to his detriment” on these representations, and he missed the
AEDPA deadline as a result. Patterson, 211 F.3d at 931.
       The district court found that this case did not present extraordinary
circumstances because “nothing prevented Williams from filing his federal writ
without having received notice of the denial of his state writ.” It is true that
nothing actually prevents a petitioner from filing his federal habeas petition
before learning of the resolution of his state habeas application.                     But it is
axiomatic that a petitioner must exhaust his claims in state court before bringing
them to federal court. 28 U.S.C. § 2254(b)(1)(A). And AEDPA specifically
provides that the statute of limitations is tolled while a state habeas petition is
pending. 28 U.S.C. § 2244(d)(2). Therefore, a petitioner with notice that his
claims are, in fact, still pending in state court has no reason to run to federal
court and file a federal habeas petition.8
       The district court also held that Williams’s “ignorance of the law” could not
serve to excuse his untimely filing, much less amount to an extraordinary
circumstance. See Fisher, 174 F.3d at 714 (“[I]gnorance of the law, even for an


       8
          The state asserts that Williams should have filed a “protective” petition in federal
court while he awaited an answer on his state application. See Pace v. DiGuglielmo, 544 U.S.
408, 416 (2005). In Pace, the Supreme Court suggested that a petitioner in doubt as to
whether his state application is “properly filed” such that it will toll the statute of limitations
should file a “protective” petition in federal court to avoid the running of the AEDPA limitation
period. Id. The Court did not hold that petitioners must file protective petitions in order to
invoke equitable tolling, and we have previously declined to hold that a protective petition is
necessary. See Howland v. Quarterman, 507 F.3d 840, 846 (5th Cir. 2007). Further, Williams
had no reason to consider filing a protective petition because he continued to receive letters
from the TCCA assuring him that his case was still pending. See Critchley, 586 F.3d at 321
(Petitioner could not have “known to file [a protective] petition until he became aware that his
state application had not been filed.”).

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incarcerated pro se petitioner, generally does not excuse prompt filing.”). But
Williams has not pled ignorance of the law. If anything, the record demonstrates
that Williams tried to properly follow the letter of the law by waiting until he
had received notice of the denial of his state habeas writ—and had thus
exhausted his claims in state court—before filing his federal habeas petition.
Williams has instead demonstrated his ignorance of the facts through no fault
of his own.      See Wilson, 442 F.3d at 875.        Williams diligently pursued
information regarding his state application and was thrice misinformed
regarding its status.
         We conclude that the circumstances presented in this case are sufficiently
“rare and exceptional” and that Williams is entitled to equitable tolling of the
AEDPA statute of limitations until he first received notice of the TCCA’s denial
of his state habeas application on March 30, 2006. As of that date, Williams had
65 days remaining on the AEDPA clock. He filed his federal petition on May 15,
2006, 46 days later. Therefore, Williams’s federal habeas petition was timely
filed.
                               III. CONCLUSION
         For the foregoing reasons, we VACATE the district court’s dismissal of the
petition and REMAND to the district court for further proceedings.




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