                         REVISED - August 23, 1999

                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                             __________________

                                  No. 98-10298
                               __________________

      FELIZ TALAZ VILLEGAS,

                                                Petitioner-Appellant,

                                     versus

      GARY L. JOHNSON, Director, Texas                Department   of   Criminal
      Justice, Institutional Division,

                                       Respondent-Appellee.
          ______________________________________________

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

                                 August 9, 1999

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

      Texas   state     prisoner    Feliz     Talaz    Villegas    appeals   the

dismissal of his petition for a writ of habeas corpus.                       The

district court found that Villegas did not file his petition within

the   limitation      period    established     by    the   Antiterrorism    and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214 (1996) (“AEDPA”). We conclude that the statute of limitations

was tolled while Villegas’s second state habeas petition was

pending. Because we exclude that time period from the calculus, we

find that Villegas’s federal petition was timely.                  We therefore

vacate the judgment and remand for further proceedings.

                                       I

      On March 21, 1991, a jury convicted Villegas of one count of
aggravated sexual assault and two counts of indecency with a child.

The trial court sentenced him to a term of imprisonment for thirty-

five years for the former count and a term of imprisonment for

fifteen years for each of the latter counts.           On September 21,

1992,   the   Court   of   Appeals    affirmed   Villegas’s       conviction.

Villegas did not file a petition for discretionary review with the

Texas Court of Criminal Appeals.

     Villegas filed his first state habeas corpus petition on

January   27,   1995.      This   application    included     a    claim    of

insufficient evidence, a claim based on the use of extraneous

offenses, a challenge to the indictment’s charging three non-

property offenses arising out of the same transaction, and an

argument that the trial court erred in denying Villegas’s motion

for a new trial based on newly discovered evidence.           This petition

was denied without written order on June 28, 1995.          Villegas filed

a second state habeas corpus petition on March 26, 1996.                   The

grounds raised in the second application were that Villegas was

denied a complete copy of his trial court records and that he

received ineffective assistance of counsel.          In accordance with

section 4 of article 11.07 of the Texas Code of Criminal Procedure,

this petition was dismissed as successive or an abuse of the writ




                                     -2-
on April 9, 1997, over one year after it was filed.

     Pursuant to 28 U.S.C. § 2254, Villegas filed a petition for a

writ of habeas corpus in federal district court on or about October

7, 1997.    In support of this petition, Villegas claimed that he

received ineffective assistance of counsel and that the trial court

erred in denying his motion for               a new trial based on newly

discovered evidence. Because Villegas filed his petition after the

effective date of AEDPA, its provisions govern his claims.                   See

Lindh v. Murphy, 521 U.S. 320 (1997).

     The respondent moved to dismiss the petition on the ground

that it was barred by the statute of limitations set forth in 28

U.S.C. § 2244(d)(1), as amended by AEDPA.                 Villegas opposed the

motion,    relying      on    AEDPA’s     tolling   provision,       28   U.S.C.

§ 2244(d)(2).      He argued that the pendency of his second state

petition had tolled the limitation period and that his federal

petition was therefore timely.            The magistrate judge to whom the

matter was referred recommended that the petition be dismissed with

prejudice as time-barred.           In making this recommendation, the

magistrate judge found that Villegas’s successive state application

had not been “properly filed” as that term is used in § 2244(d)(2)

and that, as a consequence, its pendency had not tolled the

limitation period.           Villegas filed a written objection to the

magistrate judge’s recommendation. The district court subsequently

adopted    the   magistrate     judge’s    report   and    recommendation    and

dismissed Villegas’s petition with prejudice.                Villegas filed a

timely    notice   of   appeal,    and    the   district     court   granted   a


                                        -3-
certificate of appealability for our consideration of the question

whether    Villegas’s    second    state   habeas   corpus   petition    was

“properly filed” for purposes of 28 U.S.C. § 2244(d)(2).

                                     II

       Before AEDPA’s enactment, a prisoner faced no strict time

constraints in filing a petition for a writ of habeas corpus.            See

Davis v. Johnson, 158 F.3d 806, 809 n.4 (5th Cir. 1998).                AEDPA

amended 28 U.S.C. § 2244 to establish a one-year limitation period

for filing a habeas petition in federal court.         In most cases, the

limitation period runs from “the date on which the judgment became

final by the conclusion of direct review or the expiration of the

time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).                 In

United States v. Flores, 135 F.3d 1000 (5th Cir. 1998), however, we

held   that    this   one-year   limitation   period   cannot   be   applied

retroactively to extinguish claims that were technically time-

barred prior to AEDPA’s enactment.            Flores established that a

petitioner such as Villegas, whose conviction became final prior to

AEDPA’s enactment, is afforded one year following AEDPA’s effective

date, April 24, 1996, to file an application for a writ of habeas

corpus.1      See id. at 1006; cf. Flanagan v. Johnson, 154 F.3d 196

(5th Cir. 1998) (clarifying that AEDPA’s enactment date is excluded

from the computation of the one-year period applicable to petitions



  1
   Flores dealt with the limitation period set forth in 28 U.S.C.
§ 2255, but relied on cases interpreting the similar provision of
28 U.S.C. § 2254. The holding in Flores applies to
petitions filed under both § 2255 and § 2254. See Flanagan v.
Johnson, 154 F.3d 196, 200 n.2 (5th Cir. 1998).

                                     -4-
that would otherwise be time-barred as of April 24, 1996, such that

petitions filed on or before April 24, 1997, are timely).

     Villegas submitted his petition after April 24, 1997, but

asserts that his filing did not fall outside the limitation period.

Villegas relies on AEDPA’s tolling provision, codified at 28 U.S.C.

§ 2244(d)(2), which states:

     The time during which a properly filed application for
     State post-conviction or other collateral review with
     respect to the pertinent judgment or claim is pending
     shall not be counted toward any period of limitation
     under this subsection.

In Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998), we held that

petitioners whose convictions became final before AEDPA’s enactment

may rely on this tolling mechanism during the pendency of a

petition   covered    by   §   2244(d)(2).        Assessing     the     merit   of

Villegas’s   claim    requires    that    we    ascertain      the   meaning    of

“properly filed” as that term appears in § 2244(d)(2), as only

properly   filed     applications   will       trigger   the    Act’s    tolling

provision.   Specifically, we must determine whether a successive

state petition may fit within the scope of § 2244(d)(2).

     Villegas argues that his second state habeas corpus petition

was filed in accordance with Texas’s procedural filing requirements

and that the dismissal of that petition as successive has no

bearing on whether it was properly filed.            The respondent argues

that Villegas’s second state petition was not properly filed

because it was dismissed as successive.             The respondent asserts

that allowing tolling based on the second petition would undermine

the purpose of the limitation period by allowing a prisoner to file


                                    -5-
endless state petitions while preserving his ability to file stale,

but technically timely, federal petitions.

          The majority of courts that have considered this issue have

concluded that “‘a properly filed application’ is one submitted

according to the state’s procedural requirements, such as the rules

governing notice and the time and place of filing.” Lovasz v.

Vaughn, 134 F.3d 146, 148 (3d Cir. 1998); accord, e.g., Souch v.

Harkins, 21 F. Supp. 2d 1083 (D. Ariz. 1998); Galindo v. Johnson,

19 F. Supp. 2d 697 (W.D. Tex. 1998); Ellis v. Johnson, 11 F. Supp.

2d 695 (N.D. Tex. 1998); Hughes v. Irvin, 967 F. Supp. 775

(E.D.N.Y. 1997).        A handful of district courts have found instead

that a properly filed application is one that is not frivolous, but

these       courts   have   offered   little   analysis   to   support     their

conclusion that the phrase “properly filed” connotes some measure

of merit.      See Washington v. Gramley, No. 97 C 3270, 1998 WL 171827

(N.D. Ill. Apr. 10, 1998); Hill v. Keane, 984                   F. Supp. 157

(E.D.N.Y. 1997); Valentine v. Senkowski, 966 F. Supp. 239 (S.D.N.Y.

1997).       We agree with the majority line of cases and, based on

principles of statutory construction and concerns regarding comity

and exhaustion, we hold that a “properly filed application” for

§       2244(d)(2)   purposes   is    one   that   conforms   with   a   state’s

applicable procedural filing requirements.2             We further hold that


    2
   By procedural filing requirements, we mean those prerequisites
that must be satisfied before a state court will allow a petition
to be filed and accorded some level of judicial review.      Such
filing requirements are not limited to the rules governing notice
and the time and place of filing and may include, for example, a
requirement that the petitioner obtain judicial authorization for

                                        -6-
Villegas’s second petition, although dismissed as successive, was

properly filed and thus tolled the applicable limitation period.

       Neither AEDPA nor its legislative history explains which state

filings qualify as properly filed applications.                     See S. Rep. No.

104-179 (1995), reprinted in 1996 U.S.C.C.A.N. 924; H.R. Conf. Rep.

No. 104-518 (1996), reprinted in 1996 U.S.C.C.A.N. 944.                    Like the

Third Circuit, we are reluctant to engraft a merit requirement into

§ 2244(d)(2) without some indication of congressional intent to do

so.    See Lovasz, 134 F.3d at 149 (“After all, Congress chose the

phrase ‘a properly filed application,’ one into which we do not

read any requirement that the application be non-frivolous.”).

That we deal here with a statute that constrains the right to seek

a     writ   of   habeas    corpus    also      inclines       us   to   resist   an

interpretation that goes beyond the plain meaning of § 2244(d)(2).

Without a clear sign of congressional intent, this court ought not

derogate that right by reaching for an overbroad interpretation.

See Galindo, 19 F. Supp. 2d at 706-08; cf. Lonchar v. Thomas, 517

U.S. 314, 330 (1996) (“[G]iven the importance of a first federal

habeas petition, it is particularly important that any rule that

would deprive inmates of all access to the writ should be both

clear and fair.”).

       We    similarly     refuse    to    find   that     a    successive    state

application or one containing procedurally barred claims is per se

improperly filed. Section 2244(d)(2) explicitly requires only that

a state application be properly filed.              Had Congress intended to


the filing.

                                          -7-
condition tolling on a state court finding of merit, it could have

drafted § 2244(d)(2) to exclude frivolous petitions from its scope.

So   too    could    Congress    have   crafted      a   provision    that   clearly

withheld tolling from prisoners filing in state court successive

petitions     or    petitions    containing       procedurally     barred    claims.

Congress enacted AEDPA against a backdrop of federal habeas law

dealing with procedurally barred claims.                   See, e.g., Coleman v.

Thompson, 501 U.S. 722, 750 (1991) (barring federal habeas review

of claims defaulted in state court pursuant to an independent and

adequate     state     procedural       rule      unless   the     petitioner    can

demonstrate cause and prejudice or a fundamental miscarriage of

justice); cf. Souch v. Harkins, 21 F. Supp. 2d 1083, 1087-88 (D.

Ariz. 1998) (observing that an extensive body of law governs

federal habeas petitions raising procedurally barred claims and

reasoning     that,    if   Congress        had   sought   to    alter   this   legal

landscape, it would have made such an intent clear). Congress also

dealt with the problems raised by successive petitions at the same

time that it drafted § 2244(d)(2).                See 28 U.S.C. § 2244(a)-(b).

That Congress nonetheless chose not to address successive state

petitions or procedurally barred claims in § 2244(d)(2) convinces

us all the more that we ought not assume an overly broad meaning of

“properly filed.”

      Our    close     reading    of    §    2244(d)(2)     also     comports    with

principles of comity and concerns regarding exhaustion.                          The

Supreme Court has stated that “the States should have the first

opportunity to address and correct alleged violations of state


                                         -8-
prisoner's federal rights.” Coleman, 501 U.S. at 731. AEDPA was an

attempt on the part of Congress to “‘reduce federal intrusion into

state criminal proceedings,’” Lovasz, 134 F.3d at 148 (citation

omitted), encourage claim exhaustion, see 28 U.S.C. §2254(b)(1),

and accord greater deference to state court adjudications, see 28

U.S.C. §§ 2254(d)(1)-(2), (e)(1); Gochicoa v. Johnson, 118 F.3d

440, 444 (5th Cir. 1997); Drinkard v. Johnson, 97 F.3d 751, 767-69

(5th Cir. 1996).    Our interpretation of § 2244(d)(2) is in keeping

with these statutory purposes.

     With respect to comity concerns, we agree with the Third

Circuit that “if a state allows petitioners to file second or

subsequent petitions for post-conviction relief, federal courts

should not undermine the state’s decision by refusing to toll the

one-year period of limitation of § 2244(d)(1) where a second or

subsequent petition is pending in the state court system.” Lovasz,

134 F.3d at 148.   AEDPA evinces no congressional intent to embroil

federal courts in problematic determinations of the merit of state

court filings.     See id. at 149 (finding a merit inquiry to be

inappropriate and unnecessary); Hughes v. Irwin, 967 F. Supp. 775,

778-79 (E.D.N.Y. 1997) (highlighting the difficulties posed by a

substantive merit inquiry).      Moreover, we see no reason to second-

guess state legislatures’ decisions regarding the disposition of

state applications for post-conviction or other collateral review.

     At   this   time,   as   when   Villegas   filed   his   second   state

petition, Texas places no absolute time or numerosity limitations

on the filing of applications for a writ of habeas corpus after a


                                     -9-
conviction not involving the imposition of the death penalty.             See

Tex. Crim. P. Code Ann. art. 11.07 (West Supp. 1999).            Texas could

have placed greater restraints on the time or number of filings by

prisoners   such   as   Villegas,   see,    e.g.,   id.   art.   11.071   §   4

(establishing the time frame for filing a habeas application in a

death penalty case), but it did not.           So too, Texas could have

enacted a statutory scheme precluding the filing of a successive

petition without prior judicial authorization.               See, e.g., 28

U.S.C. § 2244(b)(3)(A)-(B) (conditioning the filing of a successive

federal habeas petition on the authorization of such filing by a

three-judge panel of the court of appeals);3 Ind. R. Proc. Post-

Conviction Remedies 1, § 12 (directing Indiana state courts to

decline to authorize the filing of a successive petition unless the

petition form and proposed successive petition demonstrate that the

petitioner is entitled to relief).         Nor did the State court refuse

to accept Villegas’s successive petition for filing, as it may do

in certain circumstances.     See Lowe v. Scott, 48 F.3d 873, 875 (5th



   3
    The dissent argues that § 2244(b)(3) is a procedural filing
requirement pertaining to successive petitions. We agree. From
that fact, the dissent then leaps to the further conclusion that
any state rule pertaining to successive petitions must also be a
procedural filing requirement. This leap is unsupported in logic.
Congress relied on a filing requirement to limit successive
petitions. In contrast, some states, including Texas, have sought
to discourage successive petitions by limiting the availability of
relief, instead of prohibiting the actual filing of such
applications.   Section 4 of article 11.07 of the Texas Code of
Criminal Procedure allows the filing of a successive petition but
then requires judicial consideration of the application to
ascertain whether it contains sufficient facts to allow the court
to delve into the merits of the individual claims set forth in the
petition.

                                    -10-
Cir.    1995)   (recognizing      the    abuse-of-the-writ     doctrine   which

“allows the court after finding that petitioner has abused the

writ, to refuse to accept or file the habeas petition absent a

showing of cause that the contention could not have been raised in

the prior proceeding”);        Ex parte Dora, 548 S.W.2d 392, 394 (Tex.

Crim. App. 1977) (delineating circumstances in which state court

may decline to file an application for a writ of habeas corpus);

cf. 28 U.S.C. § 1915(g) (barring civil actions by prisoners whose

three or more previous actions were dismissed as frivolous and who

are proceeding in forma pauperis); id. § 1915A (allowing a court to

review    prisoner    complaints        for    frivolous   claims   and   immune

defendants prior to docketing); Tex. Crim. P. Code Ann. art. 11.07

§ 5 (“The Court of Criminal Appeals may deny relief upon the

findings and conclusions of the hearing judge without docketing the

cause.”).     In fact, Texas law specifically contemplates the filing

of successive applications.         The Texas Code of Criminal Procedure,

although sharply constraining Texas courts in their review of

successive petitions, allows them to grant relief in limited

instances, notwithstanding the filing of an earlier application.

See    Tex.   Crim.   P.   Code   Ann.    art.    11.07(4)   (delineating   the

circumstances in which a court may consider the merits of or grant

relief based on a successive petition).4             Thus, like Congress with


  4
   Section 4 of article 11.07 precludes a grant of relief based on
a successive petition, unless the petitioner demonstrates facts
sufficient to fit within a statutory exception allowing relief. We
view § 4 as a limitation on a Texas state court’s ability to grant
relief for a successive petition, as opposed to an absolute bar to
the filing of such a petition. Although, pursuant to § 4, a Texas

                                        -11-
AEDPA,    Texas   has     established    a     policy   regarding    successive

petitions.    As that matter is left to the states--the first forum

for resolution of habeas claims--we find it unlikely that Congress

intended its tolling provision to result in indifference to, or

even interference with, a given state’s handling of petitions for

post-conviction relief.

     We agree with the Third Circuit that we should not embrace an

interpretation of § 2244(d)(2) that would “discourage petitioners

from exhausting all their claims in state court, even by means of

a second or subsequent petition for post-conviction relief where

permissible under state law, before seeking habeas review in

federal court.” Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998).

Making tolling contingent upon some measure of success before the

state    courts   would    undermine    AEDPA’s    emphasis   on    exhaustion.

Unable to predict whether the state court will find that their

successive petitions fit within the statutory exceptions allowing

relief, many prisoners seeking to ensure compliance with AEDPA’s

limitation period either would forgo the successive state filing

and submit a premature federal petition or would simultaneously

file state and federal petitions.             Federal courts would then face


state court will not automatically consider the merits of claims
raised in a successive petition, it will accept the petition for
filing and review the application to determine whether the
statutory exceptions are met.     See, e.g., Ex parte Tucker, 973
S.W.2d 950 (Tex. Crim. App. 1998) (examining whether second
application for writ of habeas corpus contained facts sufficient to
establish an exception allowing a grant of relief on the basis of
the application); Ex parte Sowell, 956 S.W.2d 39 (Tex. Crim. App.
1997) (same). If the successive petition does not fit within an
exception, the state court will dismiss it.        This process is
distinct from the refusal to accept a petition for filing.

                                       -12-
the dilemma of holding petitions in abeyance or dismissing without

prejudice petitions that may later be time-barred by virtue of the

ensuing state court determination. See Brewer v. Johnson, 139 F.3d

491, 493 (5th Cir. 1998) (per curiam) (noting a district court’s

authority to abate or dismiss a petition if the prisoner has not

exhausted available state remedies).           Section 2244(d)(2), as we

have interpreted it, avoids these pitfalls by allowing tolling if

a   prisoner      complies    with   the     state’s   procedural     filing

requirements.     In this manner, AEDPA encourages exhaustion, avoids

piecemeal and successive federal filings, and leaves established

doctrine to deal with procedurally barred claims.

     We are mindful of the respondent’s concern that allowing

tolling for meritless state petitions will undermine the limitation

period imposed by AEDPA. Although our interpretation may forestall

final resolution of some petitions, it will not extend to an

excessive degree the time for filing; in nearly every case, the

tolling will last only as long as the state court takes to resolve

the pending application because any lapse of time before a state

application is properly filed will be counted against the one-year

limitation period.     See Flanagan v. Johnson, 154 F.3d 196, 199 n.1

(5th Cir. 1998).      Thus, a prisoner will not be able to revive an

expired limitation period by simply filing a state petition in

conformity with basic procedural requirements.             Furthermore, the

potential   for     delay    may   decline   as   states   place    stricter

restrictions on the filings that are the basis of tolling.            In the

meantime, Texas’s judicial abuse-of-the-writ doctrine will serve as


                                     -13-
an impediment to the repeated filing of meritless petitions.                This

doctrine,    which    is    similar     to   AEDPA’s     successive-petition

provisions, allows the Texas Court of Criminal Appeals to refuse to

accept a successive application from a petitioner who has abused

the writ, unless the petitioner demonstrates that his claim could

not have been raised in an earlier proceeding.            See, e.g., Lowe v.

Scott, 48 F.3d 873, 875 (5th Cir. 1995).            Thus, the abuse-of-the-

writ doctrine minimizes the extent to which a petitioner can extend

the   federal    limitation    period.       In    the   end,    however,   the

respondents’ concerns pertain to policy and are more appropriately

directed    to   Congress   and   the   state     legislature.      Any   delay

occasioned by tolling is insufficient to force an interpretation

not supported by the statute.

                                      III

      For the reasons discussed above, we conclude that 28 U.S.C.

§ 2244(d)(2) authorizes tolling during the pendency of petitions

filed in accordance with a state’s procedural filing requirements.

We hold that Villegas’s second state habeas petition, although

dismissed as successive, was properly filed within the meaning of

§ 2244(d)(2).      With the benefit of the resulting toll, Villegas

filed his federal within the limitation period established by the

AEDPA.     We therefore VACATE the judgment and REMAND for further

proceedings consistent with this opinion.




                                      -14-
EMILIO M. GARZA, Circuit Judge, dissenting:

        I write separately because I conclude that Villegas’s second state habeas petition did not toll

the limitations period. I concur with the conclusion of the majority opinion that 28 U.S.C. §

2244(d)(2) authorizes tolling the limitations period during the pendency of petitions filed in

accordance with a state’s procedural filing requirements. I disagree, however, with the majority’s

conclusion that Texas law places no limit on the number of successive state habeas petitions. I

conclude that Villegas’s second petition was not “properly filed” for the purposes of § 2244(d)(2),

because Villegas did not file his petition in accordance with Texas’s procedural requirements for the

filing of a successive habeas petition.

        Villegas filed two petitions for state collateral relief following the conclusion of direct review

of his convictions. The Texas Court of Criminal Appeals dismissed his second petition as a

Successive or Abuse of the Writ Petition, in accordance with Article 11.07, Section 4, of the Texas

Code of Criminal Procedure. See TEX. CODE CRIM. P. ANN. art. 11.07 (West Supp. 1999). Villegas

filed the instant habeas petition in federal district court. The magistrate judge found that the second

state petition was not a proper filing, because the Texas court had refused the petition under state law

as an abuse of the writ. The magistrate judge then concluded that the second petition was not

“properly filed” according to the AEDPA, and thus would not toll the limitations period for filing the

federal habeas petition. See 28 U.S.C. § 2244(d)(1). Subsequently, the district court adopted the

magistrate judge’s recommendation that the petition be dismissed with prejudice on the ground that

it was barred by limitations. Villegas timely appealed.

        Title 28 U.S.C. § 2244(d)(1) provides for a one-year limitations period for a state prisoner

to file a writ of habeas corpus. Section 2244(d)(2) tolls the limitations period: “The time during

which a properly filed application for State post-conviction or other collateral review with respect

to the pertinent judgment or claim is pending shall not be counted toward any period of limitation

under this subsection.” The statute does not define the meaning of the phrase “properly filed,” and

the legislative history is similarly silent as to its import. See, e.g., Hughes v. Irvin, 967 F. Supp. 775,

                                                  -15-
778 (E.D.N.Y. 1997). Federal courts routinely defer to state procedural filing requirements, in lieu

of creating federal filing requirements, to determine whether a habeas petition is “properly filed” in

state court.5 See, e.g., United States ex rel. Morgan v. Gilmore, 26 F. Supp. 2d 1035, 1038 (N.D.

Ill. 1998) (stating that a “properly filed application” is one filed in accordance with a state’s

procedural requirements).

         The parties dispute when a petition qualifies as “properly filed” under Texas law. Villegas

argues that a petition is “properly filed” in Texas when it “is filed in the court in which the conviction

being challenged was obtained.”6 The Respondent argues that a petition cannot be considered to have

been “properly filed” if the petition was dismissed under state procedural rules as successive. The

Respondent argues, essentially, that the failure to comply with Article 11.07, Section 4, means that

Villegas’s state habeas application was not “properly filed.”

        The majority opinion does not properly characterize the Respondent’s argument. The

majority states that “we are reluctant to engraft a merit requirement into § 2244(d)(2) without some

indication of congressional intent to do so.”7 The opinion states later that, “[w]e similarly refuse to

find that a successive state application or one containing procedurally barred claims is per se

improperly filed.” Such statements, which make no reference to state law filing requirements,

indicate that the majority opinion is addressing whether the phrase “properly filed” should include a

federally-created merits inquiry irrespective of state law. The issue of whether to read additional

  5
    In other words, if a state requires an applicant to file a petition in thirty days, a federal court will
defer to that state requirement, in lieu of creating a federal requirement.
   6
   Villegas cites to Article 11.07, Section 3, of the Texas Code of Criminal Procedure. See TEX.
CODE CRIM. P. ANN. art. 11.07, § 3.
   7
       Such statements indicate that the majority views Article 11.07, Section 4, as an inquiry into the
merits of the habeas petition. The inquiry required by Section 4 is distinct from, and occurs precedent
to, a consideration of the merits. Section 4(a) prohibits a court from considering the merits of a
petition unless the petitioner can show either (1) cause for failure to bring the claim previously, or
(2) that, but for a violation of the United States Constitution, no rational juror could have found the
applicant guilty beyond a reasonable doubt. See TEX. CODE CRIM. P. ANN. art. 11.07, § 4(a). The
first provision is not concerned with the merits of the claim. The latter provision resembles a
harmless-error analysis, and does not involve an inquiry into the merits of the claim. For this reason,
it is incorrect to discuss Section 4 as if it requires an inquiry into the merits.
                                                  -16-
federal requirements into the meaning of “properly filed” is irrelevant, however, to the issue of

whether a petition is not “properly filed” because it fails to comply with a state’s procedural

requirements. The Respondent is not requesting that we add federal requirements beyond those

required by Texas procedural law. Rather, the Respondent’s argument is grounded fundamentally

on Villegas’s failure to comply with Texas procedure. The Respondent argues that Villegas’s second

petition, which was dismissed as an abuse of the writ under Article 11.07, Section 4, failed to comply

with Texas’s procedural requirements. Thus, the issue on appeal is whether Texas’s abuse-of-the-

writ statute is a state procedural filing requirement.

        Because I disagree with the majority’s characterization of the Respondent’s argument, I also

disagree with the relevance of many of its arguments. Much of the majority’s discussion considers

whether “properly filed” includes a merits requirement independent of a state’s procedural

requirements. The majority states that it will not engraft a merits requirement into § 2244(d)(2)

without some indication of congressional intent to do so. After acknowledging that the plain

language and the legislative history are silent as to the meaning of “properly filed,” the majority infers

congressional intent from the language, structure, and purposes of the AEDPA. There is no

indication, however, that Congress even considered this issue. Moreover, to the extent that one can

infer congressional intent from the language, structure, or purposes of the AEDPA, the inference is

that federal courts should defer to state procedural filing requirements.

        The majority reasons from the absence of language in the AEDPA that refers to either merits

requirements or successive-petition requirements. For example, the majority states that, “[h]ad

Congress intended to condition tolling on a state court finding of merit, it could have drafted §

2244(d)(2) to exclude frivolous petitions from its scope. So too could Congress have crafted a

provision that clearly withheld tolling from prisoners filing in state court successive petitions or

petitions containing procedurally barred claims.” Yet, Congress’s choice of the phrase “a properly

filed application” does not have any bearing on which types of state requirements apply. If federal

courts require a petition to have “merit” if state procedural law so requires, then there was no need

                                                 -17-
for Congress to add a requirement that the petition be non-frivolous. On the other hand, some states

may not include any form of “merits” inquiry in their state procedural filing requirements. For

petitions filed in these states, federal co urts should not perform a “merits” inquiry, because these

states would not. If Congress had “crafted a provision that clearly withheld tolling from prisoners

filing successive petitions,” as the majority suggests, then in states that allow successive petitions, this

provision would be in conflict with state law. A specification by Congress that “properly filed” shall

include, or shall not include, certain procedural requirements would be inconsistent with deferring to

the states. It is doubtful that Congress wished to add procedural filing requirements beyond those

required by the states. To the contrary of the majority’s opinion, the congressional intent ascertained

from the phrase “properly filed” suggests deferring to all state procedural filing requirements,

including those for successive petitions.

        The majority opinion suggests that the structure of the AEDPA evinces congressional intent.

The majority states “Congress enacted AEDPA against a backdrop of federal habeas law dealing with

procedurally barred claims.” The majority intimates that considering successive-petition requirements

in the AEDPA’s tolling provisions would alter this “legal landscape.” Yet, the “legal landscape” is

no more altered by recognizing states’ successive-petition requirements than it is by recognizing

timing requirements. Procedural default applies to claims that are filed late, and yet the majority

recognizes that a “properly filed application” is one that is not filed late. See, e.g., Coleman v.

Thompson, 501 U.S. 722, 749, 111 S. Ct. 2546, 2564, 115 L. Ed. 2d 640 (1991) (“By filing late,

Coleman defaulted his entire state collateral appeal.”). The majority did not look for congressional

intent to alter the law on procedural default before it held that a “properly filed application” conforms

with a state’s applicable procedural requirements, which includes timing requirements. Therefore,

it is disingenuous for the majority to cite the law regarding procedural default as an indicator of

congressional intent.

        The majority also supports its structural interpretation by reference to 28 U.S.C. § 2244(a)-

(b). The opinion explains that Congress dealt with the problems raised by successive federal petitions

                                                  -18-
at the same time that it drafted the tolling provisions in § 2244(d)(2). The majority states that

Congress’s choice not to address successive state petitions in § 2244(d)(2) means that we should

narrowly read the phrase “properly filed.” This structural choice, ho wever, is easily explained.

Although Congress created federal procedural filing requirements to properly file a successive federal

petition, it refrained from specifying state procedural filing requirements. This structural choice can

be read as a display of comity toward state procedural filing requirements, which may or may not

include successive-petition requirements. If anything, § 2244(b) suggests that a state’s procedural

requirements may include successive-petition requirements. In order to obtain a Certificate of

Appealability (“COA”), § 2244(b)(3) requires an applicant to show either cause for failure to bring

the claim in a prior petition or actual innocence. Yet, a successive federal habeas petition would not

be “properly filed” if the petitioner did not obtain a COA. The COA requirement suggests that a

state’s “applicable procedural requirements” for a petition to be “properly filed” may, in some

situations, include successive-petition requirements. Thus, I am unconvinced that the structure of the

AEDPA favors the majority’s interpretation of congressional intent.

        The majority explains that its interpretation comports with the principle of comity. To the

extent that the majority is declining to add a federal substantive requirement to “properly filed,” I

agree. However, to the extent that the majority refuses to recognize certain state procedural

requirements, I find the majority opinion antithetical to the principle of comity. As explained above,

if comity is a concern, then federal courts should look to state procedural filing requirements to

ascertain whether a petition is filed properly. If a state does not allow prisoners to file frivolous

successive petitions, then the federal courts should not undermine the state’s decision by tolling the

AEDPA’s limitations period.       Given that it is the state that created the successive-petition

requirements, it cannot be said that the federal court that recognizes those state-created requirements

is, according to the majority, second-guessing the state legislature’s decision regarding the disposition




                                                 -19-
of state applications for post-conviction relief.8 It cannot be said that the federal court is intruding

into state proceedings or is not according adequate deference to the state courts.

        The majority also explains that its interpretation comports with concerns regarding

exhaustion. It states that we shoul d not adopt an interpretation of § 2244(b)(2) that would

discourage petitioners from exhausting claims in state court, “even by means of a second or

subsequent petition for post-conviction relief where permissible under state law.” Lovasz, 134 F.3d

at 148. This statement recognizes that, if a state has expressed its preference that its courts should

not hear certain claims, then there is no reason to toll the federal limitations period while the

petitioners pursue those claims in state court. If a court determines that an application is not filed

according to state procedural requirements, which may or may not include successive-petition

requirements, then that application should not toll the limitations period. Although the AEDPA has

an emphasis on exhaustion, as the majority asserts, it also directs federal courts to toll the limitations

period only for applications that are “properly filed” in state court.

        In discussing the exhaustion requirement, the majority reasons that including a merits

requirement in “properly filed” would incur problematic results. The majority’s concern is that

prisoners will file unexhausted claims in federal court, and the federal district courts will abate the

petitions or dismiss them without prejudice. If the state court determines that a petition does not

meet the state’s procedural requirement, and this determination occurs outside the limitations period,

then the prisoner’s frivolous petition is barred from federal review. This result is not problematic,

because the only petitions that the limitations period will bar are those that are in violation of the

state’s procedural rules. In any event, the results are no more problematic than those associated with

some state timing requirements recognized by federal courts. See Triggs v. Cain, No. CIV. A. 97-

2430, 1999 WL 127249, at *2, 3 (E.D. La. Mar. 8, 1999) (finding that an application was not


   8
     In this case, the Texas legislature passed a statute that the Texas state courts can not consider
successive habeas petitions that are an abuse of the writ. It is perplexing that the majority professes
to see no reason to “second-guess state legislatures’ decisions,” and yet it disregards the Texas
statute.
                                                 -20-
“properly filed” where the petitioner failed to prove a statute-of-limitations exception that applies

where the petitioner receives new information). Further, if a state law bars certain successive

petitions, then we should not allow a petitioner to forestall the federal limitations period by repeatedly

filing such petitions.9 Thus, I disagree with the majority’s exhaustion concerns.

        I turn to whether Texas’s abuse-of-the-writ statute is a state procedural filing requirement.

Article 11.07 of the Texas Code of Criminal Procedure provides the “Procedure after

conviction without death penalty”:

        § 1. This article establishes the procedures for an application for writ of habeas corpus in
        which the applicant seeks relief from a felony judgment imposing a penalty other than death.
        ....
        § 4. (a) If a subsequent application for writ of habeas corpus is filed after final disposition of
        an initial application challenging the same conviction, a court may not consider the merits of
        or grant relief based on the subsequent application unless the application contains sufficient
        specific facts establishing that:
        (1) the current claims and issues have not been and could not have been presented previously
        in an original application or in a previously considered application filed under this article
        because the factual or legal basis for the claim was unavailable on the date the applicant filed
        the previous application; or
        (2) by a preponderance of the evidence, but for a violation of the United States Constitution,
        no rational juror could have found the applicant guilty beyond a reasonable doubt.

TEX. CODE CRIM. P. ANN. art. 11.07. We should interpret the Texas statute as a Texas court would

interpret it. See United States v. Cobb, 975 F.2d 152, 156 (5th Cir. 1992). “The primary rule in

statutory interpretation is that a court must look to the intent of the legislature.” Union Bankers Ins.

Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994). When determining legislative intent, courts may

look to the language of the statute and the legislative history. See id.

        Turning to the statute’s language, Section 1 states that Article 11.07 establishes the

procedures for an application for a writ of habeas corpus. Section 1 confirms that Section 4 is a

procedural requirement. Under Section 4, if a successive habeas application is filed, a court may not

consider the merits of the application absent one of the statutory exceptions, i.e. cause or actual

  9
     The majority states that “the respondents’ concerns pertain to policy and are more appropriately
directed to Congress and the state legislature.” The Respondent’s concerns, however, have been
addressed by the Texas legislature in Article 11.07, Article 4. It is incongruent for the majority to
encourage the Respondent to request change from the state legislature and then to refuse to recognize
the state legislature’s response to such requests.
                                                 -21-
innocence. The inquiry into whether the petition meets one of the statutory exceptions occurs

precedent to an inquiry on the merits. The majority opinion states that Texas law places no absolute

time or numerosity limitation on the filing of applications. Article 11.07, Section 4, places a limit,

however, on the number of successive habeas applications—prisoners are limited to one habeas

application except in limited circumstances.10 Although a successive habeas application may be filed,

it should not be considered “properly” filed if a state court rejects it on the procedural grounds listed

in Section 4.11

         The majority argues that Section 4 is not a procedural filing requirement by comparing it to

other sections in the Texas Code of Criminal Procedure. The majority compares Article 11.07, which

provides the “Procedure after conviction without death penalty,” to Article 11.071, which provides

the “Procedure in death penalty cases.” Specifically, the majority makes a comparison to Article

11.071, Section 4, which provides some procedures for the filing of applications.12 The proper

comparison, however, is not to Article 11.071, Section 4. The counterpart of Article 11.07, Section

4, is Article 11.071, Section 5, which specifies the procedures for “Subsequent or Untimely

Applications.” Article 11.071, Section 5(a), provides that, if an application is untimely or is a

subsequent application, then a court may not consider the merits of the application unless the

    10
      Texas’s procedural rules for the proper filing of successive petitions are comparable to the
AEDPA’s requirements for obtaining a COA. See 28 U.S.C. § 2244(b) (requiring applicant to show
cause for failing to bring the claim in a prior petition or innocence).
   11
       Some courts considering similar procedural provisions have come to the contrary conclusion.
See, e.g., Lovasz, 134 F.3d at 148-49 (explaining that Pennsylvania law allows the filing of
subsequent petitions and sometimes grants relief in such proceedings, and thus the state rule regarding
the granting of subsequent petitions does not affect whether a petition is “properly filed”); Souch v.
Harkins, 21 F. Supp. 2d 1083,1086-87 (D. Ariz. 1998) (concluding that a petition is “properly filed,”
irrespective of Arizona’s rule on procedural default, if the petition complies with basic state
requirements regarding place and time of filing). I am unpersuaded by these cases because I believe
that, in addition to Texas’s rules on the time and place for filing petitions, Texas’s law on subsequent
petitions affects whether an application is “properly filed.”
    12
         Article 11.071, Section 4 (a), gives the place and time requirements for filing a habeas
application. Section 4(b) states that an application filed after the filing date is presumed untimely,
unless the applicant can establish good cause by showing particularized justifying circumstances. See
TEX. CODE CRIM. P. ANN. art. 11.071, § 4 (a)-(b).

                                                 -22-
applicant establishes (1) cause for failure to present the claim in a timely initial petition, (2) actual

innocence, or (3) that the jurors would have answered differently the special sentencing issues. See

TEX. CODE CRIM. P. ANN. art. 11.071, § 5 (a). This Section clearly parallels Section 4 of Article

11.07. The comparison to Article 11.071 also benefits by consideration of Section 6 of Article

11.071. Section 6 states that, if the convicting court receives notice that the petition meets the

requirements of Section 5, then a writ of habeas corpus shall issue. See TEX. CODE CRIM. P. ANN.

art. 11.071, § 6. The clerk of the convicting court then makes a notation that the writ has issued and

assigns a file number to the case. See id.

        Section 5 limits the timing and number of habeas applications. As provided by Section 6, a

writ will not issue unless the petition meets the requirements of Section 5. Thus, Section 5 of Article

11.071 is a procedural filing requirement. We have interpreted Section 5(a) as a procedural rule that

“prohibits the filing of subsequent or untimely habeas applications, absent cause or actual innocence.”

Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, __ U.S. __, 119 S. Ct. 418, 142

L. Ed. 2d 339 (1998); see also Fuller v. Johnson, 158 F.3d 903, 906 (5th Cir. 1998) (stating that

Article 11.071, Section 5, “precludes a state court from considering the merits of claims presented

in a successive habeas application unless predicate facts for a statutory exception are established”),

cert. denied, __ U.S. __, 143 S. Ct. 1809, 143 L. Ed. 2d 1012 (1999). The comparison to Section

5 suggests that Article 11.07, Section 4, is also a procedural filing requirement.

        The legislative history of Texas’s abuse-of-the-writ statute supports this interpretation.

“Senator Montford, the author of the bill that added § 4(a) to Article 11.07, stated on the Senate

floor that the provision ‘adopts the abuse of the writ doctrine currently used in federal practice which

limits an inmate to a one time application for writ of habeas corpus except, and I want to emphasize

except, in exceptional circumstances.’” Ex parte Torres, 943 S.W.2d 469, 473 (Tex. Crim. App.

1997) (en banc) (quoting S.B. 440, April 19, 1995, Tape 1, Side 2). This statement suggests that,




                                                 -23-
in enacting Section 4, the legislature intended to limit the number of successive habeas petitions.13

The Texas legislature has established procedural rules limiting the number of successive habeas

applications. Based on the legislative history, we should consider Section 4 to be a requirement for

an application to be “properly filed.”

        Looking to the language of the statute and the legislative history, I conclude that Texas courts

would consider Art icle 11.07, Section 4, of the Texas Code of Criminal Procedure to be a state

procedural requirement for the filing of successive petitions. See Ex parte Davis, 947 S.W.2d 216,

220 (Ct. Crim App. 1996) (en banc) (“Articles 11.07 and 11.071 both include similar restrictions on

the filing of subsequent applications for writ of habeas corpus with both statutes becoming effective

September 1, 1995. Both contain provisions that the merits of a subsequent application may not be

considered unless the application contains sufficient facts establishing that certain conditions have

been met.”). Thus, compliance with Section 4 is required for an application to be “properly filed”

under the AEDPA. Considering all of a state’s procedural filing requirements, including those that

may contain successive-petition requirements, is an approach that comports with comity and

congressional intent. Villegas’s state habeas petition, which was dismissed under Section 4, should

not be considered “properly filed,” and thus should not toll the AEDPA’s limitations period.

Therefore, I would affirm the district court.




   13
      The floor discussion related solely to capital cases, however, Senator Montford had explained
earlier that the subsequent writ provision applied to both capital and non-capital cases. See Ex parte
Torres, 943 S.W.2d at 473 n.6.
                                                -24-
