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

                                                                            FILED
                                                                            April 3, 2013

                                       No. 11-10690                        Lyle W. Cayce
                                                                                Clerk

CHARLES EDWARD MADDEN,

                                                  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 Northern District of Texas
                                  3:10-CV-1461


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Texas state inmate Charles Edward Madden appeals the district court’s
dismissal with prejudice of his 28 U.S.C. § 2254 petition as time-barred under
28 U.S.C. §§ 1291 and 2253. Upon the conclusion of Madden’s direct criminal
proceedings, the state appellate court delayed more than eighteen months before
issuing the mandate, which prevented Madden from properly filing a state
habeas petition and exhausting his state remedies. This appeal presents two


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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questions: (1) whether this delay was a state-created impediment to Madden’s
filing a § 2254 petition, requiring a later starting date for the one-year
limitations period; and (2) whether this delay warrants equitable tolling of the
limitations period. For the reasons that follow, we find that this delay neither
constituted a state-created impediment, nor warranted equitable tolling.
Accordingly, we affirm the district court’s judgment.
                I. FACTS AND PROCEDURAL HISTORY
      Charles Edward Madden, Texas prisoner # 1378410, was convicted by a
jury of possession with intent to deliver four grams or more, but less than 200
grams, of methamphetamine. The trial court found that Madden had two prior
felony convictions and sentenced him to serve an enhanced sentence of sixty
years in prison. On direct appeal, Madden asserted that the district court erred
in denying his motion to suppress and in admitting evidence obtained during a
traffic stop, but the Court of Appeals for the Fifth District of Texas (“state
appellate court”) affirmed the conviction, issuing the mandate in January 2007.
      On October 12, 2007, Madden filed his first state habeas application,
which sought leave to file an out-of-time petition for discretionary review
(“PDR”). The Texas Court of Criminal Appeals (“TCCA”) granted Madden’s
application so that he could file a PDR, thereby reopening direct criminal
proceedings. Madden filed the PDR on June 2, 2008. On August 20, 2008, the
TCCA refused the PDR, but the state appellate court did not issue the mandate.
      On September 18, 2008, Madden filed a second state habeas application.
The TCCA dismissed this application on October 8, 2008, having determined
that Madden’s direct appeal was pending because the state appellate court had
not issued the mandate following the TCCA’s refusal of the PDR.
      Madden moved to compel the state appellate court to issue the mandate,
and on January 13, 2010, filed his third state application. The state appellate
court denied Madden’s motion to compel, but on March 10, 2010, it issued the

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mandate with respect to the refusal of his PDR. On July 15, 2010, while his third
state application was pending, Madden filed the instant § 2254 petition.
      Madden’s § 2254 petition raises the claims alleged in his third state
application, including ineffective assistance of counsel and challenges to the
jurisdiction of the trial court, the legality of the search and seizure, and the jury
instructions. Additionally, Madden requested a stay of the federal petition
pending the resolution of his state habeas proceedings. Madden noted that the
state appellate court had not issued the mandate after the reopening of his direct
criminal proceedings, and that he could not properly file his state application
until the mandate issued.
      The magistrate judge issued a report recommending that the § 2254
petition be dismissed as untimely. The report found that the state appellate
court’s delay in issuing the mandate did not affect the finality of Madden’s
conviction for the purpose of determining when the one-year statute of
limitations under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) began to run. The report also noted that, under § 2244(d)(1)(A),
Madden’s conviction became final ninety days after the refusal of his PDR, on
November 18, 2008, because he did not file a petition for writ of certiorari.
Accordingly, the report concluded that Madden’s limitations period ran until
November 18, 2009, about eight months before he filed his § 2254 petition.
      The magistrate judge also found that, under § 2244(d)(1)(B), the delay in
issuing the mandate was not a state-created impediment to filing a federal
petition requiring a later starting date for the limitations period. Noting that
state-created impediments must prevent an applicant from filing a federal
petition, the report stated that Madden knew about the bar to filing a state
application and could have filed a protective § 2254 petition and sought a stay
while he exhausted his state remedies. The magistrate judge concluded that
because the delay did not prevent Madden from filing a protective federal

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petition, Madden did not show that the delay was a state-created impediment
requiring that the limitations period start to run from a later date.
       Finally, the magistrate judge found that Madden was not entitled to
equitable tolling. The report noted that Madden faced “a dilemma between
(1) waiting for a mandate to file a state habeas application, and (2) exhausting
his claims in state court before the one-year limitations period expired.”
However, the report further noted that Madden should have known that the
mandate issuance date did not affect the finality of his conviction for purposes
of AEDPA tolling, and that Madden should have filed a protective § 2254
petition and sought a stay despite his inability to file a state application
properly. The report also concluded that Madden did not show diligence by
focusing “on the state habeas process, seeking to compel issuance of a new
mandate and assistance in filing a new state application.” According to the
report, though these actions may have been appropriate at first, at some point
Madden should have elected to file a protective § 2254 petition.
       Madden objected to the report, asserting that the state’s actions with
respect to the mandate had led him to believe that his direct appeal was still
pending and that the one-year limitations period would not run. The district
court overruled the objections, adopted the magistrate judge’s report, and
dismissed Madden’s § 2254 petition as untimely. Accordingly, the district court
denied Madden’s motion for a stay and abeyance of his case and his request for
appointment of counsel. The district court also denied Madden a certificate of
appealability (“COA”) but granted him leave to proceed in forma pauperis.
       Madden timely appealed.1 We granted a COA on two issues: (1) whether
Madden has demonstrated that the nearly nineteen-month delay in the state
appellate court’s issuance of the mandate after its ruling on the PDR was a

       1
        More precisely, Madden timely filed a motion for an extension of time to file a notice
of appeal. This was construed as a notice of appeal and forwarded to the district court.

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state-created impediment; and (2) whether equitable tolling is appropriate, that
is, whether Madden has shown the requisite extraordinary circumstances and
whether his conduct in the state court constituted the requisite due diligence.
                         II. STANDARD OF REVIEW
      The dismissal of a § 2254 petition as untimely is reviewed de novo. Krause
v. Thaler, 637 F.3d 558, 560 (5th Cir. 2011).
                               III. DISCUSSION
A.    Statute of Limitations
      AEDPA establishes a one-year statute of limitations for state inmates
seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). In this case, the
one-year period is calculated from the latest of (1) “the date on which the
judgment became final by the conclusion of direct review or the expiration of the
time for seeking such review”; or (2) “the date on which the impediment to filing
an application created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from filing by such
State action.” Id. § 2244(d)(1)(A)-(B).
      1.    Date Judgment Became Final
      Madden did not file a petition for writ of certiorari after the August 20,
2008 refusal of his out-of-time PDR. Thus, under § 2244(d)(1)(A), his conviction
became final ninety days later, on November 18, 2008. See Sup. Ct. R. 13.1;
Jimenez v. Quarterman, 555 U.S. 113, 121 (2009) (holding that a conviction is
not “final” until resolution of an out-of-time direct appeal); Roberts v. Cockrell,
319 F.3d 690, 693 (5th Cir. 2003) (stating that if a habeas petitioner has pursued
direct relief through the state’s highest court, his conviction becomes final when
the ninety-day period for filing an application for writ of certiorari with the
Supreme Court expires). Contrary to Madden’s assertion, the mandate date does
not determine the finality of his conviction for purposes of § 2244(d)(1)(A). See
Roberts, 319 F.3d at 694-95 (mandate date inapplicable in determining finality

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of conviction for purposes of one-year period). Because Madden’s § 2254 habeas
petition was filed on July 15, 2010, more than one year after the limitations
period began to run, it is facially untimely.2
       Madden’s federal petition would have been subject to statutory tolling if
he had a properly filed state habeas petition pending in state court during the
one-year limitations period. 28 U.S.C. § 2244(d)(2). However, we find that
statutory tolling does not apply because none of his state petitions was pending
during the limitations period. Madden filed his September 2008 petition before
the one-year period began to run,3 and his January 2010 petition after it had
expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (state application
filed after federal limitations period expired does not toll limitations period).
Madden’s federal habeas petition, filed approximately eight months after the
one-year limitations period elapsed, is therefore untimely absent a state-created
impediment or equitable tolling.
       2.     State-created Impediment
       Madden contends that the delay in the issuance of the mandate was a
state-created impediment requiring a later starting date for the one-year
limitations period. See 28 U.S.C. § 2244(d)(1)(B). To establish a state-created

       2
         Madden contends that his PDR became final on September 12, 2008, which was the
“final disposition” as indicated on the TCCA docket sheet. We disagree. An individual who
elects to petition for a writ of certiorari must do so within ninety days after a judgment is
entered by the state’s highest court. Judgment in Madden’s case was entered on August 20,
2008, so the November 2008 date is the proper starting point for the limitations period. See
Sup. Ct. R. 13. Given that the one-year limitations period began to run from November 2008,
Madden’s petition, which was mailed on December 7, 2009, was untimely. See Richards v.
Thaler, No. 11-20803, 2013 WL 809246, at *3-5 (5th Cir. Mar. 5, 2013) (holding that under
Texas law the pleadings of pro se inmates are considered filed at the time they are delivered
to prison authorities, not at the time they are stamped by the clerk of the court (citing
Campbell v. State, 320 S.W.3d 338, 343-44 (Tex. Crim. App. 2010))).
       3
         In addition, Madden’s September 2008 petition was not “properly filed” because he
submitted it before the mandate issued. See Larry v. Dretke, 361 F.3d 890, 893-94 (5th Cir.
2004) (citing Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App. 2000)) (finding that,
under Texas law, a conviction is not final until the appellate court issues its mandate).

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impediment, “the prisoner must 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). That is, Madden must
show that the delay actually prevented him from filing a § 2254 petition in
violation of the Constitution or federal law. See id. at 436-37; see also Krause,
637 F.3d at 560-61 (holding that a petitioner “must also show that the
[impediment] actually prevented him from timely filing his habeas petition”)
(emphasis in original). We find that he has not made the requisite showing.
      The state’s failure to issue the mandate erected a jurisdictional bar to
Madden’s filing a state application, see Larry, 361 F.3d at 894-95, but did not
prevent him from filing a timely protective federal petition and seeking a stay
of the one-year limitations period, see Gonzalez v. Thaler, 132 S. Ct. 641, 655-56
(2012) (stating that a petitioner facing a lengthy delay in the issuance of a
mandate could file a protective federal petition and seek a stay); Pace v.
DiGuglielmo, 544 U.S. 408, 416-17 (2005) (addressing when a prisoner should
file a protective petition to prevent the limitations period from running); Rhines
v. Weber, 544 U.S. 269, 278 (2005) (addressing the district court’s discretion to
abate or stay federal habeas actions pending resolution of state habeas
proceedings). Aware that the limitations period was running, and that he could
not file a state application due to the absence of a new mandate, Madden could
have filed a protective federal habeas petition with a motion to stay. Cf. Williams
v. Thaler, 400 Fed. Appx. 886, 892 n.8 (5th Cir. 2010) (unpublished) (per curiam)
(petitioner had no reason to file protective federal petition because he continued
to receive letters from the TCCA assuring him that his state application was
pending); Critchley v. Thaler, 586 F.3d 318, 321 (5th Cir. 2009) (finding that
petitioner could not have known to file a protective petition until he became
aware that his state petition had not been filed). Madden’s eventual filing of a



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protective federal petition and motion to stay—the latter of which cited both
Pace and Rhine—suggests that he was aware of this prophylactic option.
      In Critchley, the state’s failure to file petitioner Critchley’s state habeas
petitions constituted a state-created impediment under § 2244(d)(1)(B). Id. at
320. Noting the relationship between the filing of federal and state habeas
petitions, we held that the state court’s failure to file Critchley’s state habeas
petitions prevented him from filing a federal petition. Id. at 320-21. The
respondent in Critchley acknowledged that a federal petition will fail if the
petitioner does not first exhaust his claims in state court, but argued that
Critchley could have filed a protective habeas petition and sought a stay prior
to exhausting his state claims. Id. at 320. Contrary to the respondent, we found
that Critchley could not have “known to file [a protective] petition until he
became aware that his state application had not been filed.” Id. at 321. Through
his correspondence with various state courts, Madden knew of the continuing
impediment to filing his state application. In this important respect, Madden’s
case is distinguishable from Critchley’s. See id.
      Moreover, this case is distinguishable from Egerton, where the petitioner
was unaware of the one-year limitations period and had no access to legal
materials until after the limitations period had expired. 334 F.3d at 438-39
(holding that the inadequacy of the prison library, which did not include copies
of AEDPA, was a state-created impediment under § 2244(d)(1)(B)). As discussed,
Madden knew of the limitations period and the ongoing delay. He appears to
have incorrectly assumed either that, absent the reissuance of a mandate, he
could not file a federal habeas petition, or that the issuance of a new mandate
would establish the date of his conviction. Neither of these mistakes entitles
Madden to relief. First, in 2003, we held that a state conviction becomes final
when the time for seeking direct review expires, regardless of when the court of
appeals issues its mandate. See Roberts, 319 F.3d at 694-95. Second, while

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Madden may have incorrectly assumed that he was unable to file a protective
habeas petition, he was not prevented by the state from doing so, and his
ignorance of the law is not equivalent to a state-created impediment.
      Given his inability to exhaust state remedies, Madden could have filed a
protective § 2254 petition and concurrently requested a stay. As Madden has
failed to show that he was actually “prevented” from filing a timely federal
petition, he has not shown that the state set forth an impediment preventing
him from filing a timely § 2254 petition. See Krause, 637 F.3d at 560-62.
B.    Equitable Tolling
      AEDPA’s one-year limitations period is subject to equitable tolling in
appropriate circumstances. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010);
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). To be entitled to equitable
tolling, a petitioner must show “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007)
(quotation marks and citation omitted). Equitable 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 and
citation omitted), abrogated on other grounds by Richards, 2013 WL 809246, at
*3-5; see also Holland, 130 S. Ct. at 2562 (requiring a showing of extraordinary
circumstances preventing the timely filing of a federal petition). “Courts must
consider the individual facts and circumstances of each case in determining
whether equitable tolling is appropriate.” Mathis v. Thaler, 616 F.3d 461, 474
(5th Cir. 2010) (quotation marks and citation omitted).
      Adopting the magistrate judge’s recommendation, the district court held
that equitable tolling did not apply. For the reasons below, we agree.



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      1.    Misled or Prevented
      Madden argues that he was misled by the dismissal of his second habeas
petition on the grounds of a pending appeal, as he believed that the one-year
limitations period had not yet begun to run. This contention is without merit.
Madden received notice in late September or early October 2008 that his state
habeas application could not be accepted because the mandate had not issued.
At the time, the law in this circuit was clear that the mandate date was not
relevant for determining when a conviction became final for § 2244(d)(1)(A)
purposes. See Roberts, 319 F.3d at 694-95. Indeed, Madden’s communications
with the state court reflect that he was aware that the one-year limitations
period had begun to run, as he requested that the state appellate court issue the
mandate so that he could file a state petition before the time to file a federal
petition had elapsed. His apparent confusion regarding the permissibility of
filing a federal habeas petition prior to exhausting his state remedies does not
excuse his untimely filing and does not entitle him to equitable tolling. Felder
v. Johnson, 204 F.3d 168, 171-73 (5th Cir. 2000).
      Nor was Madden prevented in an extraordinary way from asserting his
rights. The magistrate judge stated that Madden was faced with the “dilemma”
of either waiting for a mandate or exhausting his state remedies. Yet Madden
could have resolved this false dilemma by filing a protective federal petition
while concurrently seeking a stay. We acknowledge that the delay itself was
unusual, not only in light of Texas Rules of Appellate Procedure 18.1, which
provides for the prompt issuance of mandates, but also in light of Gonzalez,
where the Supreme Court noted that a delay greater than one year would be
rare, 132 S. Ct. at 655. However, Madden’s inability to compel the issuance of
the mandate does not mean that he was prevented from filing a federal petition.
While Madden may have been confused about when the limitations period
commenced, neither his pro se status nor his unfamiliarity with the law suffices

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as a basis for equitable tolling. Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.
1999) (holding that “neither a plaintiff’s unfamiliarity with the legal process nor
his lack of representation during the applicable filing period merits equitable
tolling”). Because Madden could have elected to file a protective federal petition
and request a stay, we hold that he was not prevented from asserting his rights,
and that equitable tolling does not apply.
       2.     Diligence
       The record indicates that Madden’s efforts in seeking issuance of the
mandate were somewhat diligent. And “[t]he diligence required for equitable
tolling purposes is reasonable diligence.” Holland, 130 S. Ct. at 2565 (internal
quotation marks and citations omitted). However, we need not decide whether
Madden’s actions met the diligence threshold, or whether a prisoner must file a
protective petition to establish that he was acting with the requisite diligence,
because Madden was not prevented from timely filing his federal petition. See
Howland v. Quarterman, 507 F.3d 840, 846 (5th Cir. 2007) (declining to decide
whether filing a protective petition is necessary to show due diligence),
abrogated in part on other grounds by Richards, 2013 WL 809246, at *3-5. Given
that Madden should have filed a protective federal petition, his diligent
communications regarding issuance of the state mandate alone do not entitle
him to equitable tolling.4
                                   IV. CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s judgment.



       4
         In Hardy v. Quarterman we held that a prisoner’s repeated inquiries as to the status
of his state court proceedings may justify equitable tolling. 577 F.3d 596, 598-99 (5th Cir.
2009) (discussing a prisoner’s diligence in seeking information on the exhaustion of state
remedies). However, the facts in Hardy are similar to those in Critchley, insofar as the TCCA
failed to notify the petitioner in Hardy of its denial of his state habeas petition for almost a
year, and thereby prevented the petitioner from learning that his limitations period was not
being tolled. Id.

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