     Case: 13-20131      Document: 00512724978         Page: 1    Date Filed: 08/06/2014




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


                                      No. 13-20131                                 FILED
                                                                              August 6, 2014
                                                                              Lyle W. Cayce
DARRYL WAYNE TAYLOR,                                                               Clerk

                                                 Petitioner–Appellant,
v.

WILLIAM STEPHENS, 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. 4:12-CV-573


Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
PER CURIAM:*
          Darryl Wayne Taylor filed a pro se petition for federal habeas corpus
relief challenging his conviction for aggravated robbery with a deadly weapon.
He appeals the dismissal of his petition on exhaustion grounds, arguing that
an unjustified delay in the processing of his state habeas corpus application
allows him to bypass the exhaustion requirement for federal postconviction
relief.



         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. 13-20131
                                        I
      Taylor was convicted of aggravated robbery with a deadly weapon in
Texas court, and was sentenced to a prison term of forty years. His conviction
was affirmed on appeal, and the Texas Court of Criminal Appeals (CCA)
refused his petition for discretionary review. Taylor filed an application for
state habeas corpus relief on July 6, 2009, alleging that he was denied the
effective assistance of counsel because his lawyer failed to challenge his
competency to stand trial. By this time, Taylor’s trial counsel had died. Taylor
was appointed an attorney, Jules L. Laird, to represent him during the state
postconviction process.
      On August 10, 2011, Taylor sought a writ of mandamus to compel the
trial court to forward his state habeas corpus application to the CCA for failure
to resolve the legality of his confinement. The writ was denied, and his state
application is still pending.
      Taylor filed a petition for federal habeas corpus relief on February 16,
2012. He again asserted his claims of ineffective assistance of counsel, and
argued that the state trial court’s delay allowed him to bypass the requirement
to exhaust state remedies. The district court dismissed the petition without
prejudice, concluding that because Taylor’s “pending state habeas is under
active processing and consideration,” the exhaustion requirement is not
excused. This court granted a certificate of appealability.
                                       II
      Before a federal court may grant habeas corpus relief, a person in state
custody must have “exhausted the remedies available in the courts of the
State” unless “there is an absence of available State corrective process” or
“circumstances exist that render such process ineffective to protect the rights
of the applicant.” 28 U.S.C. § 2254(b)(1)(A)–(B). Taylor concedes that he has
not exhausted his state remedies, but argues that an “unjustified delay” in
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                                  No. 13-20131
state court relieves him of that requirement.        The question on appeal is
therefore whether the delay in Taylor’s case renders the state process
ineffective. 28 U.S.C. § 2254(b)(1)(B)(ii).
      Exhaustion may only be bypassed in “‘rare cases where exceptional
circumstances of peculiar urgency’ mandate federal court interference.” Deters
v. Collins, 985 F.2d 789, 795 (5th Cir. 1993) (quoting Ex parte Hawk, 321 U.S.
114, 117 (1944)).    One such circumstance exists when “the state system
inordinately and unjustifiably delays review of a petitioner’s claims so as to
impinge upon his due process rights.”         Deters, 985 F.2d at 795 (citations
omitted).
      A district court’s dismissal of a habeas corpus petition for failure to
exhaust administrative remedies is reviewed for abuse of discretion. Gallegos-
Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012), cert. denied, 133
S. Ct. 561 (2012). “A district court abuses its discretion when it dismisses a
petition on an erroneous legal conclusion or clearly erroneous finding of fact.”
Rodriguez v. Johnson, 104 F.3d 694, 696 (5th Cir. 1997). A finding of fact on
postconviction review “is clearly erroneous only if it is implausible in the light
of the record considered as a whole.” Rivera v. Quarterman, 505 F.3d 349, 361
(5th Cir. 2007) (citation omitted).
      Taylor filed his state application in July 2009. When the district court
dismissed his federal petition, his state application had been pending for more
than three years. This court has excused the exhaustion requirement for
shorter periods of delay. See, e.g., Shelton v. Heard, 696 F.2d 1127, 1128–29
(5th Cir. 1983) (sixteen-month delay); Breazeale v. Bradley, 582 F.2d 5, 6 (5th
Cir. 1978) (petition “completely dormant for over one year”). Courts, however,
“are to excuse noncompliance with the exhaustion doctrine only if the
inordinate delay is wholly and completely the fault of the state.” Deters, 985
F.2d at 796 (emphasis in original) (citations omitted).
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                                No. 13-20131
      The district court’s factual finding that Taylor’s state application was
under active processing and consideration is not clearly erroneous. As the
district court noted, a Harris County Assistant District Attorney indicated on
August 30, 2012 that she was “in the process of preparing proposed findings of
fact and conclusions of law.” She stated that the preparation of that material
was “taking longer than expected,” both because of the death of Taylor’s trial
counsel and because her attempts at contacting Taylor’s postconviction
attorney were unsuccessful.    The district court found this to be sufficient
evidence “that petitioner’s pending state habeas is under active processing and
consideration” such that exhaustion is not excused.
      This court finds no reason to disturb the conclusion that the state court
has not unjustifiably delayed review of Taylor’s claims. A claim of ineffective
assistance of counsel takes time to develop, especially when the claim involves
mental health issues that may require expert evaluation. The death of Taylor’s
trial counsel shortly after his conviction makes this inquiry particularly
difficult. See Thomas v. Thaler, 520 F. App’x 276, 283 (5th Cir. 2013), cert.
denied, 134 S. Ct. 707 (2013) (noting that the death of trial counsel may
frustrate a petitioner’s attempt to prove a claim of ineffective assistance of
counsel).
      Taylor appears to argue that any delay attributable to his court-
appointed postconviction attorney is the fault of the state. He notes that his
attorney only corresponded with him a single time after he was appointed in
2009. But “a State’s effort to assist prisoners in postconviction proceedings”—
proceedings in which prisoners do not have a constitutional right to counsel—
“does not make the State accountable for a prisoner’s delay.” Lawrence v.
Florida, 549 U.S. 327, 337 (2007) (discussing state-appointed counsel’s
miscalculation of AEDPA’s statute of limitations).


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                                  No. 13-20131
      For these reasons, the district court’s finding that the duration of
Taylor’s state postconviction case had not yet rendered the state process
ineffective is not implausible in light of the unusual circumstances of this case.
See Rivera, 505 F.3d at 361.
                                  *     *      *
      Accordingly, the judgment of the district court is AFFIRMED.




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