    Case: 18-10526    Document: 00515061594    Page: 1   Date Filed: 08/02/2019




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

                                                                      FILED
                                No. 18-10526                     August 2, 2019
                                                                 Lyle W. Cayce
                                                                      Clerk


WILLIE FRANK JACKSON,

                                         Petitioner–Appellant,

versus

LORIE DAVIS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                         Respondent–Appellee.




                Appeal from the United States District Court
                     for the Northern District of Texas




Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     We must decide whether Willie Jackson is entitled to equitable tolling of
limitations for his federal petition for writ of habeas corpus. Because, under
the specific circumstances presented, equitable tolling is appropriate, we
reverse and remand.
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                                             I.
       Jackson was convicted of aggravated robbery and sentenced to ninety
years. The Texas Court of Appeals affirmed his conviction and sentence on
direct appeal, and the Texas Court of Criminal Appeals (“TCCA”) denied his
petition for review. The Supreme Court denied Jackson’s petition for writ of
certiorari on February 29, 2016, making his conviction final. 1

       On April 14, 2016, Jackson filed a pro se application for state habeas
relief. The TCCA denied it on July 13, 2016, but Jackson did not receive notice.
About a year later, on July 20, 2017, Jackson wrote to the TCCA asking for a
“status update.” Within a few days, the clerk sent a letter saying that his
application was denied, but Jackson did not receive that letter. He wrote again
on December 20, 2017, and the clerk again responded with a letter.                       On
January 5, 2018—almost eighteen months after the TCCA had denied his state
application and almost six months after the one-year limitations period for
filing a federal habeas petition had expired, see 28 U.S.C. § 2244(d)(1)—
Jackson finally received notice that his application had been denied. The state
concedes that he was not notified of the TCCA’s denial until January 5, 2018.

       Seventeen days later, on January 22, 2018, Jackson mailed a petition for
writ of habeas corpus under 28 U.S.C. § 2254. He explained that he was filing
his federal petition more than a year after his conviction became final because
he did not receive notice that the TCCA had denied his application for eighteen
months after its decision. The petition was referred to a magistrate judge
(“MJ”), who recommended denying it as time-barred. The MJ decided that
Jackson was not entitled to equitable tolling because, by waiting fifteen



       1 Jackson v. Texas, 136 S. Ct. 1188 (2016) (mem.); see Gonzalez v. Thaler, 565 U.S.
134, 150 (2012) (holding that a conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) when
the Supreme Court denies a petition for writ of certiorari).
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                                   No. 18-10526
months after filing his state application to ask for a status update, he had failed
to “show[ ] diligence.”

      Jackson filed objections to the MJ’s recommendation. The district court
overruled them, accepted the recommendation, and denied the petition “with
prejudice as barred by the statute of limitations.” The court also denied a cer-
tificate of appealability (“COA”). Jackson timely appealed, and we appointed
counsel. We then granted a COA “as to the equitable-tolling claim that the
state court delayed notification that it had denied the habeas application.”

                                        II.
      A state prisoner generally must file for federal habeas relief within a
year after his conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). That limi-
tation period is tolled, however, during the pendency of a properly filed appli-
cation for state habeas relief. Id. § 2244(d)(2). Additionally, a court may equit-
ably toll limitations if the petitioner establishes “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
(internal quotation marks and citation omitted).

      Jackson does not dispute that the district court correctly tolled limita-
tions while his state habeas application was pending. He contends, however,
that the court also should have equitably tolled while he waited for notice from
the TCCA that it had denied his state habeas application. We agree.

                                        A.
      Equitable tolling is “a discretionary doctrine that turns on the facts and
circumstances of a particular case.” Fisher v. Johnson, 174 F.3d 710, 713 (5th
Cir. 1999). It “does not lend itself to bright-line rules, but we draw on general
principles to guide when equitable tolling is appropriate.”        Id.   “We [are]

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cautious not to apply the statute of limitations too harshly,” especially when
reviewing dismissal of a petitioner’s first habeas petition. Id. (citing Lonchar
v. Thomas, 517 U.S. 314, 324 (1996)). 2

       But equitable tolling is available “only in rare and exceptional circum-
stances.” Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009) (per curiam)
(internal quotation marks and citation omitted). “A petitioner’s failure to sat-
isfy the statute of limitations must result from external factors beyond his con-
trol; delays of the petitioner’s own making do not qualify.” Id. (citation omit-
ted). “A district court’s refusal to invoke equitable tolling is reviewed for abuse
of discretion.” Id.

       There is no dispute that Jackson has established the second element—
that “some extraordinary circumstance stood in his way and prevented timely
filing.” Holland, 560 U.S. at 649 (internal quotation marks and citation omit-
ted). We have held that delays of four months and of almost a year in receiving
notice of the denial of a state application constitute extraordinary circum-
stances. 3 The eighteen-month delay in this case easily satisfies that element
under our precedent.

       The determinative issue is thus whether the district court abused its
discretion in finding that Jackson failed diligently to pursue his rights. For at
least two reasons, it did. First, the finding does not adequately account for
Jackson’s diligence before and after the delay in receiving notice from the
TCCA. Second, it fails to consider the ample precedent from this court and
other courts of appeals indicating that Jackson acted diligently by seeking a


       2“Dismissal of a first federal habeas petition is a particularly serious matter, for that
dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an
important interest in human liberty.” Lonchar, 517 U.S. at 324.
       3 See Hardy, 577 F.3d at 598; Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000)
(per curiam).
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status update fifteen months after filing for state relief.

                                              1.
       “The diligence required for equitable tolling purposes is reasonable dili-
gence, not maximum feasible diligence.” Holland, 560 U.S. at 653 (internal
quotation marks and citations omitted). What a petitioner did both before and
after the extraordinary circumstances that prevented him from timely filing
may indicate whether he was diligent overall. 4 We therefore have found dili-
gent a petitioner who, inter alia, sought state habeas relief two months after
his state conviction became final. See Hardy, 577 F.3d at 597. In contrast, we
have ruled that a petitioner who waited almost seven months was not diligent.
See Stroman v. Thaler, 603 F.3d 299, 302–03 (5th Cir. 2010) (per curiam).

       This court has also looked to how “quickly [a petitioner] pursued federal
habeas relief after receiving delayed notice of the denial of his state habeas
application.” Williams v. Thaler, 400 F. App’x 886, 891 (5th Cir. 2010) (per
curiam). We have found diligent petitioners who filed in federal court one
week, Hardy, 577 F.3d at 597, three weeks, Williams, 400 F. App’x at 891, 5 and
one month, Phillips, 216 F.3d at 511, 6 after receiving delayed notice of the
denial of state habeas relief or otherwise exhausting state remedies. But we
deemed non-diligent a petitioner who waited seven weeks to file in federal


       4 See Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005) (refusing to apply equitable tolling
where “petitioner s[a]t on his rights for years before he filed his [state habeas] petition” and
“sat on them for five more months after” the denial of state habeas relief became final).
       5 The three weeks in petitioner’s Williams case is based on the time it took him to file
for federal habeas relief after receiving clarification from the TCCA that it had denied his
state application many months before, despite its conflicting letters in the interim that his
application was still pending. See Williams, 400 F. App’x at 887.
       6In Phillips, the petitioner received notice of his application at the end of August and
moved for an out-of-time appeal three days later. That appeal was denied on September 18.
The petitioner filed his federal petition on October 17—one month after his motion for an
appeal was denied. Phillips, 216 F.3d at 511.
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court. Stroman, 603 F.3d at 302.

      Before and after the delay in receiving notice, Jackson was comfortably
within the ranges we have considered diligent. He matched the diligent peti-
tioner in Hardy by filing his state habeas application less than two months
after his conviction became final. And he was on par with the diligent peti-
tioners in Hardy, Williams, and Phillips by mailing his § 2254 petition just
seventeen days after learning that the TCCA had denied his application.
Jackson has “show[n] that he ‘pursued the [habeas corpus relief] process with
diligence and alacrity’ both before and after receiving notification.” Hardy,
577 F.3d at 598 (quoting Phillips, 216 F.3d at 511).

                                              2.
      The state acknowledges that “Jackson’s case is similar to Hardy” but
claims two “notable distinctions”: (1) Jackson waited too long to ask for a
status update on his state application, and (2) he delayed too long to follow up
when he did not hear back. The state emphasizes that we have “never granted
a petitioner equitable tolling following a fifteen-month delay in inquiring about
the status of a state habeas application.” The state continues that Hardy
indicated that an eleven-month wait was diligent and that the district court
was “guided by” that case. The state concludes that because Jackson waited
fifteen months after filing to inquire, the court did not erroneously apply the
law by finding him non-diligent compared to the Hardy petitioner.

      Jackson counters that the standard for diligence is reasonableness, that
the TCCA is legally obligated to inform a petitioner once it has ruled on his
habeas application, 7 and that courts have recognized that “it is a difficult, if
not impossible endeavor,” for a pro se litigant to estimate how long it will take


      7   See TEX. R. APP. P. 77.4(a).
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a court to render a decision. Miller v. Collins, 305 F.3d 491, 496 (6th Cir. 2002).
For those reasons, he explains, courts have not required pro se litigants to send
state courts frequent inquiries regarding the status of their applications, “at
least until a substantial period of time has elapsed.” Diaz v. Kelly, 515 F.3d
149, 155 (2d Cir. 2008).

       Jackson continues that this court’s decisions and those of other courts of
appeals overwhelmingly support a finding that he acted diligently. That prece-
dent is especially significant, he insists, because in deciding whether to toll,
courts “can and do draw upon decisions made in other similar cases for guid-
ance.” Holland, 560 U.S. at 650. From this circuit, Jackson points to Hardy,
577 F. 3d at 599, in which we found diligent a petitioner who inquired about
the status of his case eleven months after filing his petition and followed up
two months later. He also highlights a case cited in Hardy, where we suggested
that a petitioner who first inquired about his case eight months after filing and
followed up a year later could be found diligent. 8 Jackson then presses cases
from other circuits finding petitioners diligent who waited, for example, four-
teen months 9 and at least sixteen months 10 after filing for state relief before


       8 Hardy, 577 F.3d at 599 (citing Coker v. Quarterman, 270 F. App’x 305, 310 (5th Cir.
2008) (per curiam)). Notably, petitioner Coker was slow to seek state habeas relief, waiting
over five months after his conviction became final to file his state habeas application. Coker,
270 F. App’x at 310. We held, even so, that his initial delay “d[id] not, in itself, automatically
preclude his eligibility for equitable tolling.” Id. After noting that he waited months for
notice of the TCCA’s decision and that he inquired about the status of his application twice
in twenty months, we remanded for an evidentiary hearing on the equitable-tolling issue. Id.
at 310–11.
       9 Fue v. Biter, 842 F.3d 650, 654–55, 657 (9th Cir. 2016) (en banc) (reversing dismissal
of habeas petition as time-barred because pro se petitioner’s “decision to contact the [state]
court after fourteen months . . . actually show[ed] his diligence” where the state court was
legally required to give notice of its decision, id. at 654). The Ninth Circuit has also suggested
that it would not be unreasonable or show a lack of diligence for a petitioner to wait twenty-
one months before inquiring about the status. See Huizar v. Carey, 273 F.3d 1220, 1224 (9th
Cir. 2001).
       10   Knight v. Schofield, 292 F.3d 709, 710–11 (11th Cir. 2002) (per curiam) (reversing
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                                        No. 18-10526
inquiring about the status of their applications. Jackson also illustrates that
petitioners who have been found non-diligent have generally waited much
longer than he did to seek a status update. 11

       Precedent weighs heavily in favor of finding that Jackson diligently pur-
sued his rights by sending an inquiry to the TCCA fifteen months after filing
and following up five months later, especially because he was proceeding pro se
and the TCCA was legally required to send him notice when it decided his
case. 12 Moreover, finding Jackson non-diligent, particularly on the grounds
urged by the state, could indicate that there is some bright-line standard for
determining diligence.         The state’s response focuses on Hardy and faults
Jackson for not inquiring within a year of filing his state application, as peti-
tioner Hardy did. But any sort of temporal cut-off for diligence contradicts our
precedent. See Fisher, 174 F.3d at 713 (“[E]quitable tolling does not lend itself
to bright-line rules . . . .”). The diligence inquiry is, instead, fact-specific,
“turn[ing] on the facts and circumstances of a particular case.” Id.




dismissal of habeas petition because petitioner diligently pursued his rights by inquiring
about the status of his state court petition more than sixteen months after it was denied,
where he had been “informed that he would be notified as soon as a decision was issued,” id.
at 710).
       11 See LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (finding petitioner who waited
twenty-one months to inquire was non-diligent); Lewis v. Cockrell, No. 00-50811, 2001 WL
1267701, at *3 (5th Cir. Oct. 15, 2001) (per curiam) (almost two-and-a-half years); see also
Stroman, 603 F.3d at 301–03 (finding non-diligent a petitioner who asked for a status update
ten months after filing but was slow to file for state habeas relief); see generally Drew v. Dep’t
of Corr., 297 F.3d 1278, 1281, 1287 (11th Cir. 2002) (finding non-diligent a petitioner who—
after his first federal petition was dismissed for failure to exhaust and he had waited sixteen
months to check on its status—waited over a year to file for state relief, then waited another
three months to file for federal relief after his state application was denied), overruled on
other grounds by Jones v. Sec’y, Fla. Dep’t of Corr., 906 F.3d 1339 (11th Cir. 2018).
       12 See Williams, 400 F. App’x at 891–92 (holding that petitioner “acted with ‘diligence
and alacrity’ in pursuing his federal habeas rights given ‘his prisoner and pro se status and
the fact that the TCCA had the legal duty to notify him’ that his state application had been
denied” (quoting Hardy, 577 F.3d at 599)).
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                                  No. 18-10526
      The facts here and the weight of precedent demonstrate that Jackson
was diligent before the delay in receiving notice, during the pendency of his
state application, and in promptly filing his federal habeas petition after
receiving notice. Jackson filed for state habeas relief two months after his
petition became final and then suffered extraordinary circumstances in the
form of a lengthy state-created delay in sending him notice of the denial of his
state application. During that delay, he twice inquired about the status of his
application and filed for federal habeas relief just seventeen days after finally
receiving notice from the TCCA. Given those facts, Jackson acted diligently
and is entitled to equitable tolling.

                                        B.
      Jackson’s conviction became final on February 29, 2016, when the
Supreme Court denied certiorari. That triggered the one-year statute of limita-
tions. He filed his state habeas application after forty-five days, which tolled
limitations until the TCCA denied his application on July 13, 2016.

      Because Jackson is entitled to equitable tolling, we toll the statute of
limitations from the day the TCCA issued its decision until January 5, 2018—
the day the parties agree Jackson received notice of that decision. Limitations
thus started running again on January 5, 2018. Only seventeen days elapsed
before Jackson filed his § 2254 petition, so a total of sixty-two days of the one-
year limitations period had run. Jackson easily filed his petition within the
365 days that § 2244(d)(1) affords.

      The judgment denying Jackson’s § 2254 petition as time-barred is
REVERSED and REMANDED for consideration of his habeas petition. We
express no view on its ultimate merits, and we place no limitation on the mat-
ters that the district court may address on remand.


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