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

                                                                            FILED
                                                                        December 23, 2008

                                     No. 07-20810                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


STEVEN RAY SCHILLEREFF

                                                  Petitioner - Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-1872


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Steven Ray Schillereff, Texas prisoner # 1202954, was granted a stay and
abeyance for his Section 2254 federal habeas petition conditioned on the filing
of his state habeas pleadings by a certain date. He sought a second extension of
time for filing his state habeas pleadings under the terms of the stay, and the
district court denied his request. We REVERSE and REMAND.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-20810

       Schillereff pled guilty to a state charge of aggravated assault with a deadly
weapon. His sentence was twenty years in prison. His state appeal was denied
in March 2006; the ninety-day period in which certiorari could be requested
expired on May 30, 2006. On May 25, 2007, Schillereff filed a 136-page petition
in U.S. district court challenging his conviction. See 28 U.S.C. § 2254. He
asserted that his guilty plea was involuntary due to counsel coercion, ineffective
assistance, and misstatements by the trial court. Schillereff indicated that he
had not yet filed a state postconviction application but that he intended to do so.
Contemporaneously with this petition, Schillereff filed a motion to stay the
federal proceedings in order that he might exhaust his state remedies, pursuant
to Rhines v. Weber, 544 U.S. 269 (2005). His one-year period to file his federal
petition would expire on May 30, 2007. He had mailed a state postconviction
application earlier in May but did not know whether it was filed. He asserted
that his federal petition included both exhausted and unexhausted claims.
       On June 19, 2007, the district court granted Schillereff’s motion for a
Rhines stay.1       The stay was conditioned on Schillereff’s filing a state
postconviction application within thirty days of the order. On June 29, 2007,
Schillereff filed his first motion for an extension of time to file his state
application. The district court granted the motion, ordering Schillereff to file his
state postconviction application by August 18, 2007. The court noted that more
than a year had already passed in which Schillereff could have filed a state writ
application and advised that no further extensions would be granted.




       1
         Between 1972 and 2004, Texas applied the “two-forums” rule, which Texas courts used
to dismiss state habeas applications when a prisoner also had a writ pending in federal court
relating to the same conviction or the same matter. See Ex parte Powers, 487 S.W.2d 101 (Tex.
Crim. App. 1972). However, the two-forums rule is no longer applied in Texas, and prisoners
may file state habeas applications while a writ is pending in federal court relating to the same
conviction or matter provided that the federal court has stayed its proceedings. Ex parte
Soffar, 143 S.W.3d 804, 807 (Tex. Crim. App. 2004).

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      On September 4, 2007, Schillereff filed a second motion for an extension
of time. He reported that on August 8, he had delivered his state application to
prison authorities for mailing. Because of the size of his pleadings and new
postal regulations regarding the weight of packages, he was forced to mail the
application in seventeen separate packages. Although the first package was sent
by certified mail to the Harris County Clerk of Court, it was delivered to the
Harris County District Attorney’s Office. On August 21, 2007, the Harris
County Clerk advised Schillereff that the office had received sixteen of the
seventeen packages, but because the first package was missing, the application
was incomplete and could not be filed. All were returned.
      In his September 4 filing for more time, Schillereff asserted that even
though the prison mailroom agreed to help him deliver the postconviction
application in one box, he would be unable to mail the state application before
September 10. Schillereff noted that he had mailed the application ten days
before the district court’s imposed deadline, and the only reason for the lack of
compliance was the error committed by the U.S. Postal Service. He requested
sixty additional days to file his state application, which would provide the prison
system with time to obtain metering capacity that would allow him to mail a
single box to the state court. The district court denied the motion.
       Schillereff moved for reconsideration, pointing out the circumstances of
his untimely state filing and requesting an extension of time or relief that would
preclude the dismissal of his pending Section 2254 petition. The district court
denied the motion for reconsideration, vacated the stay, and dismissed
Schillereff’s Section 2254 petition without prejudice based on his failure to
exhaust. Schillereff filed a timely appeal.
      This court granted Schillereff a certificate of appealability on the question
of whether the district court abused its discretion in denying the second motion



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for an extension of time. We established a deadline for his brief. No brief was
requested from the State, which has not participated in this appeal.
                                  DISCUSSION
      Schillereff requested a stay to permit the completion of the filing of his
state habeas application and the pursuit of relief in state court. Accepting the
benefits of the district court’s initial decision, he appeals the later denial of an
extension of time when his mailed application was not properly delivered to the
state court. We will first analyze whether the district court erred in its final
ruling, but we then will examine the initial order that permitted the stay.
      We review motions for extension of time for abuse of discretion. See
United States v. Plascenia, 537 F.3d 385, 388-89 (5th Cir. 2008). A prisoner
must do all that he reasonably can “to ensure that documents are received by the
clerk of court in a timely manner.” Thompson v. Raspberry, 993 F.2d 513, 515
(5th Cir. 1993) (citing Fallen v. United States, 378 U.S. 139 (1964), superseded
by rule amendment as recognized in Carlisle v. United States, 517 U.S. 416
(1996)). We must decide whether Schillereff’s actions met that standard.
      The district court granted a stay until August 18, 2007. Ten days prior to
that date, Schillereff gave all of his documents to prison officials. The only
evidence in the record is that due to a combination of limitations on the prison’s
mailing system, the U.S. Postal Service’s delivery error, and state regulations
regarding filing when less than all pleadings have been received, Schillereff’s
lengthy pleadings were returned to him unfiled.
      Useful here, but only for comparison, is a special rule that often applies to
court filings by inmates. It is called the “prison mailbox rule,” which generally
allows inmate filings to be considered as having been made when the documents
are placed with prison authorities. See Howland v. Quarterman, 507 F.3d 840,
844 (5th Cir. 2007).     However, the rule does not apply to state habeas
applications from inmates in Texas. Id. In making that holding, we relied on

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a precedent which concluded that issues regarding inmate filings arising in state
habeas cases from Texas fell under the doctrine of equitable tolling:
      We decline to extend the mailbox rule to the determination of filing
      dates for state habeas applications. Instead, when a prisoner asserts
      that his ability to file a federal habeas petition has been affected by
      a state proceeding, we will examine the facts to determine whether
      the prisoner is entitled to equitable tolling under § 2244(d)(1).
Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).
      Schillereff has argued here that equitable tolling should preserve his right
to proceed. “The doctrine of equitable tolling preserves a plaintiff’s claims when
strict application of the statute of limitations would be inequitable.” Davis v.
Johnson, 158 F.3d 806, 810 (5th Cir. 1998) (citation and internal quotation
marks omitted). Among the doctrine’s applications is when a plaintiff “is
prevented in some extraordinary way from asserting his rights.” Rashidi v. Am.
President Lines, 96 F.3d 124, 128 (5th Cir. 1996). A “‘garden variety claim of
excusable neglect’” does not support equitable tolling. Id. (citation omitted). We
examine whether Schillereff was “prevented in some extraordinary way” from
making the assertion of rights in a timely fashion.
      Schillereff first raised the issue of equitable tolling in his request for
reconsideration of the denial of the final extension that he sought. The district
judge, in granting the first extension of thirty extra days, explicitly ruled that
the extra time was not based on equitable tolling. So the issue has existed in
this case since early in the proceedings regarding extensions.
      In the precedent that identified equitable tolling as the doctrine applicable
to a case such as this in Texas, the court clerk’s office had made an error.
Coleman, 184 F.3d at 402. Equitable tolling was not applied, however, because
after being victimized by an error outside of his control, the inmate did not
diligently pursue his Section 2254 relief. Instead, he waited almost six months
after learning of the problem. Id. at 403.


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      We do not have any evidence of Schillereff’s delay after learning of the fact
that one of his seventeen packages did not arrive properly. Indeed, he has
moved with considerable dispatch. Schillereff asserts that he submitted the
entire set of documents to state court on September 6, 2007, and that they were
filed on September 12, 2007. There is no contrary evidence. Should his state
habeas relief be denied, the federal door otherwise opened through Section 2254
will be closed absent a Rhines stay. Schillereff was unable to meet the district
court’s time deadline even though his application was addressed and mailed
properly under the court’s order. Due to the prison’s mailing system and a
postal service error, the complete file did not arrive at the clerk’s office. Because
of the incompleteness, nothing was filed.
      Schillereff has shown that he was “prevented in some extraordinary way
from asserting his rights.” Rashidi, 96 F.3d at128. The only evidence is that he
did all that he reasonably could do “to ensure that documents are received by the
clerk of court in a timely manner.” Thompson, 993 F.2d at 515. Still, the
petitioner’s efforts fell short. That failure was reviewed by the district court,
which exercised its discretion by saying that no more extension would be
granted. We now review that discretionary judicial decision for whether “a
meaningful error in judgment” was committed. Lussier v. Runyon, 50 F.3d 1103,
1111 (1st Cir. 1988).     The context for the district court’s final exercise of
judgment is that even though Schillereff’s earlier requests for a stay or for an
extension of time could have been denied, both had been granted. Our judgment
is that once the district court started down the path of allowing an extension of
time, and Schillereff diligently proceeded, it was an improper application of
discretion to deny one more extension that was necessitated solely by events
beyond the petitioner’s control.
      In deciding that the district court erred in exercising discretion, we have
largely relied on the fact that the court granted the initial stay for thirty days

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for filing the state proceedings, then later granted an extension which gave a
total of sixty days from the original deadline.            Those earlier orders, and
Schillereff’s compliance with them to the maximum extent possible, are what
made the denial of one more extension improper. However, this pattern of
analysis brings directly into focus whether a Rhines stay should ever have been
granted. It is one thing to conclude, as we have, that if a stay is going to be
granted, an inmate’s efforts to comply with court orders under the stay should
not be penalized on the basis of matters outside of his control. It is another issue
altogether whether an entitlement to a Rhines stay was ever shown.
       Under Rhines, a stay and abeyance is appropriate when the district court
finds (1) the petitioner has good cause for failure to exhaust his claim, (2) the
claim is not plainly meritless, and (3) the petitioner has not engaged in
intentional delay. 544 U.S. at 277-78. The district court neither made any of
these findings, nor cited Rhines. The district court may have been concerned
about the good cause factor when, in its order denying the second motion for an
extension of time, it stated that Schillereff made no explanation for his waiting
more than a year to file his state habeas application. Schillereff had alleged that
he had been unable to file his state habeas application because the state did not
provide him with records he needed for his appeal until nearly a year after his
trial ended. He also contends that the records were provided in DVD format,
which he cannot view at the prison and had to have transcribed.
      Consequently, we REVERSE. The cause is REMANDED to the district
court for consideration of the Rhines factors.2




      2
        Because of our reversal, we find Schillereff’s motion for appointment of counsel to
represent him in this court to be moot. We deny the motion.

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