     Case: 09-50729     Document: 00511950424         Page: 1     Date Filed: 08/08/2012




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

                                                                            FILED
                                                                           August 8, 2012

                                       No. 09-50729                        Lyle W. Cayce
                                                                                Clerk

PAUL JAMES KOUMJIAN,

                                                  Petitioner - Appellant

v.

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

                                                  Respondent - Appellee



                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:05-CV-00221


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        After a state court in Texas found Petitioner Paul James Koumjian, Texas
prisoner # 1039181, guilty of possession of a prohibited substance in a
correctional facility, he was sentenced to twenty-eight years imprisonment. His
state habeas corpus petitions were denied. The district court denied Koumjian’s
federal habeas corpus petition as time-barred under the one-year statute of


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 09-50729

limitations of 28 U.S.C. § 2244(d)(1). In April 2011, we granted a certificate of
appealability (“COA”) to determine whether Koumjian’s second state habeas
corpus application was “properly filed” for statutory tolling purposes under 28
U.S.C. § 2244(d)(2). We review de novo the district court’s decision.1
       The Texas Court of Criminal Appeals (“TCCA”) dismissed Koumjian’s
second state habeas petition as non-compliant with Rules 73.1 and 73.2 of the
Texas Rules of Appellate Procedure, which require that habeas petitions be
submitted on a particular form, because Koumjian’s petition was missing that
form’s pages 3 and 5. Koumjian contends that his petition was not, in fact,
missing those pages.
       The Supreme Court has indicated that a state court’s ruling that a state
habeas petition was not properly filed is “the end of the matter,”2 precluding
such petition’s tolling of the statute of limitations for purposes of the filing of a
federal habeas petition. This appears to be so even if the grounds for the state
court’s ruling are debatable.3 In non-binding, unpublished opinions, this court4




       1
           Krause v. Thaler, 637 F.3d 558, 560 (5th Cir. 2011).
       2
         Carey v. Saffold, 536 U.S. 214, 226 (2002); see also Allen v. Siebert, 552 U.S. 3, 7
(2007) (“Because Siebert’s petition for state postconviction relief was rejected as untimely by
the Alabama courts, it was not ‘properly filed’ under § 2244(d)(2).”).
       3
         See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because the state court rejected
petitioner’s [Pennsylvania Post Conviction Relief Act, or “PRCA”] petition as untimely, it was
not ‘properly filed,’ and he is not entitled to statutory tolling under § 244(d)(2).”); see also id.
at 422 (Stevens, J., dissenting) (“At the time Pace filed his PCRA petition, no Pennsylvania
court had yet applied the PCRA statute of limitations to a petitioner whose conviction had
become final prior to the effective date of the Act.”).
       4
         See Whitlock v. Quarterman, No. 06-11066, 2008 WL 3244282, at *1 (5th Cir. Aug. 8,
2008) (unpublished) (state habeas petition not “properly filed” because the TCCA determined
that it did not comply with Rule 73.2 of the Texas Rules of Appellate Procedure); Caldwell v.
Dretke, No. 03-10928, 182 F. App’x 346, 347, 2006 WL 1519472 (5th Cir. May 26, 2006)
(unpublished) (same); Edwards v. Dretke, No. 03-11347, 116 Fed.Appx. 470, 471, 2004 WL
2278502 (5th Cir. Oct. 6, 2004) (unpublished) (same).

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has followed other courts5 in holding that a state court’s ruling as to whether a
state habeas petition is “properly filed” is dispositive.
      But even if today we could look behind the TCCA’s decision, we would see
that Koumjian has not rebutted the facts on which that decision is based by
“clear and convincing evidence.”6 The TCCA returned the state habeas petition
to Koumjian after dismissing it, so we cannot determine precisely what was
before the TCCA when it made its ruling. Koumjian points to complete copies
of the petition in the record; the Respondent has provided a copy that it obtained
from the state court which, strangely, is missing page 5, but includes page 3.
Given this absence of clarity in the record, we must hold that Koumjian has not
adduced clear and convincing evidence to refute the TCCA’s statement that the
petition it reviewed lacked pages 3 and 5 and thus violated Rules 73.1 and 73.2
of the Texas Rules of Appellate Procedure.
      Further, the record fact that page 5 was missing from Koumjian’s petition
supports the TCCA’s decision. Rule 73.1 unambiguously provides that a habeas
petition “must be made in the form prescribed,” and that “[t]he person making
the application must provide all information required by the form.” Rule 73.2
also states that a noncompliant application will not be filed, but will instead be
returned to the person who filed it. Although page 3 of the prescribed form
contains more substantive questions than does page 5, important information
is nonetheless required on page 5, including whether the applicant has pending
any petitions or appeals that attack the same conviction. Thus, notwithstanding
the possibility that Koumjian’s application might have included page 3, we



      5
        Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir. 2009) (state habeas petition was
improperly filed when rejected by state court, regardless of whether the verification
requirement that the petitioner violated was firmly established and regularly followed);
Walker v. Norris, 436 F.3d 1026, 1031 (8th Cir. 2006) (same).
      6
          28 U.S.C. § 2254(e)(1).

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nevertheless conclude that Koumjian has failed sufficiently to rebut the facts
underlying the TCCA’s decision with clear and convincing evidence.7
       Additionally, in our April 2011 decision, we explicitly denied Koumjian a
COA on the question of whether the TCCA’s delay in rejecting his petition is an
“extraordinary circumstance” that prevented him from timely filing his federal
habeas petition and thus entitles him to equitable tolling. A 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.”8 We denied a COA grounded on equitable tolling
even though the TCCA took four months to reject Koumjian’s petition,
concluding that the delay did not constitute an “extraordinary circumstance.”
It is undisputed that Koumjian’s petition was filed on March 10, 2003, that the
matter remained before the state trial court through March of 2004, and that the
TCCA rejected the petition on July 21, 2004. Thus, although the TCCA only took
about four months to reject Koumjian’s petition, it was outstanding for more
than 16 months, during which time the one-year statute of limitations under 28
U.S.C. § 2244(d)(2) expired.
       These additional facts would not change the end result, however, even if
we were to grant a COA on this issue. As the district court found, even if an
extraordinary circumstance prevented timely filing–a question we need not
reach–Koumjian was not “diligent” in pursuing his federal habeas rights. “We
review the district court’s decision not to invoke the doctrine of equitable tolling


       7
         In reaching this conclusion, we need not, and do not, rely on the affidavit of a law
librarian which was submitted by the Respondent as a supplement to the record on appeal.
Nonetheless, we do have the discretionary authority to accept supplemental materials not
presented to the district court. Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir. 1984).
We exercise that discretion to consider the additional copies of the state court record provided
by the Respondent in an attempt to resolve the confusion in that record.
       8
           Holland v. Florida, 130 S.Ct. 2549, 2562 (2010) (quoting Pace, 544 U.S. at 418).

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for abuse of discretion.”9 After the TCCA rejected Koumjian’s state habeas
petition on July 21, 2004, he waited until March 27, 2005–more than eight
months–to file the instant federal petition. We have noted repeatedly that
“[e]quity is not intended for those who sleep on their rights.”10 We have held
that delays of as little as four and six months precluded a finding of diligence.11
It is true that, after he moved for the TCCA to reconsider its decision, Koumjian
filed an additional state habeas petition during that period. But, even if we were
to subtract the total time that such motion and petition were pending,
Koumjian’s delay in filing his federal petition would still exceed four and a half
months. In light of this delay, we cannot hold that the district court abused its
discretion in denying Koumjian’s claim of equitable tolling.12




       9
           Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999).
       10
         Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999) (quoting Covey v. Arkansas River
Co., 865 F.2d 660 (5th Cir. 1989)).
       11
        Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) (delay of over four months);
Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (six months).
       12
         Neither do Koumjian’s three prior federal habeas petitions–filed in 2001, 2002, and
2003–demonstrate his diligence, years later, in filing the present habeas petition. Further,
those prior federal petitions were not stayed pending the exhaustion of state remedies and
thus do not constitute “protective” petitions under Pace, 544 U.S. at 416.

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                                        No. 09-50729

       We therefore affirm the district court’s judgment dismissing Koumjian’s
habeas petition,13 and deny as moot Koumjian’s motion to compel the production
of specified state court records.
       AFFIRMED.




       13
           We note that the district court erred by issuing its order dismissing the petition
before the expiration of the period it gave Koumjian to file a reply. Although a court does not
necessarily need to wait for a reply “in support of a motion” before ruling under W.D. of Tex.
Local Civil Rule 7(f), it “must give [a] party against whom . . . additional materials are offered
an opportunity to admit or deny their correctness” under Rule 7(c) of the Rules Governing
Section 2254 Cases in the United States District Courts. Here, Koumjian’s “reply” was his
first opportunity to respond to new materials submitted by the Respondent after the district
court issued its Order to Show Cause. The district court should have waited for Koumjian’s
reply, or for the time to file that reply to expire, before issuing a ruling. The district court
subsequently rectified this error, however, by considering Koumjian’s (1) motion for
reconsideration, (2) “traverse,” (3) supplement to his motion for reconsideration, (4) reply, and
(5) “urgent letter.” In addition to denying Koumjian’s motion for reconsideration under the
standards of Fed. R. Civ. P. 59(e) and 60(b), the court held: “Additionally, after reviewing the
file, the Court again concludes that Koumjian’s cause is time-barred.” In light of the court’s
additional consideration, we have no cause to remand this case.

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