     Case: 10-50918     Document: 00511951966         Page: 1     Date Filed: 08/09/2012




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

                                                                            FILED
                                                                           August 9, 2012

                                       No. 10-50918                        Lyle W. Cayce
                                                                                Clerk

ROBERT MCINTOSH,

                                                  Petitioner - Appellant
v.

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

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:08-CV-405


Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Robert McIntosh, Texas prisoner # 795107, was convicted by a jury of
three counts of engaging in organized criminal activity to compel prostitution
and one count of engaging in organized criminal activity to commit aggravated
promotion of prostitution, and was sentenced to 45 years of imprisonment. He
filed this § 2254 application challenging his conviction and sentence, but the
district court dismissed his application as barred by the statute of limitations.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50918

This court previously granted McIntosh a certificate of appealability (“COA”) on
the issue of whether the district court erred in concluding that his application
was untimely. We now affirm.
                        FACTS AND PROCEEDINGS
      McIntosh’s convictions and sentence were affirmed on direct appeal and
on discretionary review by the Texas Court of Criminal Appeals (“TCCA”). After
the TCCA denied his state habeas corpus petition, McIntosh filed this pro se
§ 2254 application in the district court, asserting claims that the evidence was
insufficient to support his convictions, that his counsel provided ineffective
assistance, and that his conviction on one count violated the Double Jeopardy
Clause.
      McIntosh’s application was dated September 18, 2008, but it was not filed
by the district court until October 20, 2008. The parties agree that, accounting
for all tolling periods, the statute of limitations on McIntosh’s application
expired on either the 29th or 30th of September of the same year. On January
16, 2009, the respondent filed his answer to McIntosh’s application, arguing that
the application was barred by the statute of limitations. While acknowledging
that McIntosh’s application was dated September 18, 2008, the respondent
contended that McIntosh did not mail the application to the district court until
October 14, 2008, more than two weeks after the limitations period expired, and
submitted an envelope from McIntosh to the district court that was postmarked
on October 14.
      McIntosh did not file a response to the respondent’s answer. On August 31,
2009, the district court entered an order dismissing McIntosh’s § 2254
application as barred by the statute of limitations for the reasons set forth in the
respondent’s answer and sua sponte denying McIntosh a COA. McIntosh filed a
timely notice of appeal.



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                                   No. 10-50918

      In his request for a COA in this court, McIntosh argued that his § 2254
application was timely filed because it was received by the district court clerk’s
office on September 22, 2008. He submitted an unsigned letter dated September
22, 2008, from the district court clerk’s office that informed him that his
application had been received but would not be filed until he paid the filing fee
or submitted an application for leave to proceed in forma pauperis.
      This court granted McIntosh a COA on the issues of whether this court
may consider on appeal the purported letter from the district court clerk’s office
and whether the district court erred by finding that McIntosh’s § 2254
application was untimely. McIntosh v. Thaler, No. 10-50918 (5th Cir. Apr. 20,
2011) (unpublished). The clerk of this court subsequently granted McIntosh’s
motion to expand the record on appeal to include the letter from the district
court clerk’s office.
                            STANDARD OF REVIEW
      Generally, in an appeal from the denial of a § 2254 application, the district
court’s findings of fact are reviewed for clear error and issues of law are reviewed
de novo. See Hardemon v. Quarterman, 516 F.3d 272, 274 (5th Cir. 2008). This
court reviews the denial of a § 2254 application on procedural grounds de novo.
Matthis v. Cain, 627 F.3d 1001, 1003 (5th Cir. 2010), cert. denied, 131 S. Ct. 3040
(2011). McIntosh, however, failed to file a response to the respondent’s answer
to his application, and therefore never raised any arguments concerning the
timeliness of his § 2254 application in the district court. Accordingly, we review
this issue only for plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009). To prevail on plain-error review, McIntosh must show an error that is
clear or obvious and that affects his substantial rights. See id. If he makes such
a showing, we have discretion to correct the error, but will do so only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.

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                                        No. 10-50918

                                       DISCUSSION
       McIntosh essentially contends that the district court plainly erred by
finding that his § 2254 application was untimely. He argues that the September
22 letter from the district court clerk demonstrates that his application was
received, and should therefore have been filed, before the statute of limitations
expired. For purposes of the statute of limitations, the proper filing date of a
§ 2254 application from a pro se inmate is the date that the applicant tenders it
to prison authorities for mailing or the date that it is received by the district
court, not the date on which the applicant pays the filing fee. See Spotville v.
Cain, 149 F.3d 374, 376–78 (5th Cir. 1998); see also R. GOVERNING SEC. 2254
CASES 3(b) advisory committee’s note (noting that for purposes of the statute of
limitations, “revised Rule 3(b) requires the clerk to file a petition, . . . . even [if]
it lack[s] the requisite filing fee or an in forma pauperis form”). Therefore, if the
purported letter from the clerk’s office is authentic, McIntosh is correct that the
clerk should have filed his application by September 22, 2008, several days
before the expiration of the limitations period.1
       Nevertheless, the letter that McIntosh wishes us to rely upon was not part
of the record before the district court, and it is well established that “[a]n
appellate court may not consider new evidence furnished for the first time on
appeal and may not consider facts which were not before the district court at the
time of the challenged ruling.” Theriot v. Parish of Jefferson, 185 F.3d 477, 491
n.26 (5th Cir. 1999). In granting McIntosh a COA, we stated that “the letter was
arguably before the district court because it was purportedly generated by the
district court.” This observation, while true, is only relevant if we assume that


       1
         To the extent that the letter is authentic, it indicates that the district court clerk
routinely declines to file § 2254 applications until a filing fee is received, in contravention of
Rule 3(b) of the Rules Governing Section 2254 Cases in the United States District Courts.
Moreover, it is unclear why the letter, if authentic, was not entered on the docket sheet and
included in the district court record.

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                                  No. 10-50918

the letter is authentic. In other words, if the letter is inauthentic, it obviously
was not “before the district court” under any interpretation of that phrase.
      The respondent, though not alleging that the letter is a fake, has also not
conceded the letter’s authenticity. Because the letter remains unauthenticated
and we do not hold evidentiary hearings to make factual determinations,
McIntosh cannot demonstrate that the district court committed plain error by
failing to file his application before the limitations period expired. If McIntosh
wishes to present the letter to the district court, he may attempt to do so by
filing a motion under Federal Rule of Civil Procedure 60(b). We offer no opinion
on the proper resolution of such a motion.
                                CONCLUSION
      For the reasons given above, the judgment of the district court is
AFFIRMED.




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