     Case: 11-20803    Document: 00512164642      Page: 1   Date Filed: 03/05/2013




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

                                                                   FILED
                                                                  March 5, 2013

                                  No. 11-20803                    Lyle W. Cayce
                                                                       Clerk

KENNETH RICHARDS,

                                            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 Southern District of Texas


Before JOLLY, GARZA, and OWEN, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
      Petitioner Kenneth Richards, a Texas state prisoner, exhausted his state
remedies and moved to file a habeas corpus petition.           The district court
dismissed the application as time-barred because it was filed after the one-year
deadline under 28 U.S.C. § 2244 for filing a 28 U.S.C. § 2254 application expired.
Richards appeals, contending the district court erred by deeming the date the
clerk of the court stamped his state post-conviction petition as received to be the
date he filed the petition. Richards alleges under Texas law the pleadings of pro
se inmates, including petitions for state post-conviction relief, are deemed filed
at the time they are delivered to prison authorities, not at the time they are
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stamped by the clerk of the court. Richards also asserts he is entitled to
equitable tolling. In light of the Texas Court of Criminal Appeals holding in
Campbell v. State, 320 S.W.3d 338, 339 (Tex. Crim. App. 2010), applying the
prison mailbox rule to criminal cases, we REVERSE and REMAND.
                                        I
      Richards was convicted of possessing a cell phone while an inmate of a
correctional facility and sentenced to twenty-five years of incarceration. His
direct appeal was unsuccessful, and on August 19, 2009, the Texas Court of
Criminal Appeals declined review. Because Richards did not petition the
Supreme Court for certiorari his conviction became final on November 17, 2009,
at the end of the ninety-day period for filing a petition for certiorari. Richards
sought state post-conviction relief, placing his petition in the prison mail system
on October 12, 2010. On November 18, 2010, 37 days later, it was stamped
received by the Texas Court of Criminal Appeals. The court denied relief on
January 19, 2011.
      On February 11, 2011, Richards mailed his § 2254 application to the
federal district court. Thaler moved for summary judgment alleging that the
application was untimely. Richards opposed the motion.
      The parties disputed whether Richards filed his state post-conviction
petition before the one-year statutory deadline for filing a § 2254 application
expired. Richards argued that he filed the petition on October 12, 2010, the date
prison records indicate he put the petition into the prison mail system. Thaler
argued the petition was filed 37 days later on November 18, 2010, the date the
petition was stamped as received by the state court. According to Richards, 329
days elapsed from the date the conviction became final—November 17,
2009—until the date he filed his state petition—October 12, 2010. The parties
agreed 22 days elapsed between the date the state court denied post-conviction
relief and Richards mailed his § 2254 application on February 11, 2011.

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Richards argued that because only a total of 351 days, not counting the tolling
period, elapsed after his conviction became final, his § 2254 petition was filed
within the one-year limitations period and was thus timely. Thaler argued
because the state conviction petition was not filed until November 18, 2010,
when stamped by the clerk of the court, Richards missed the one-year deadline
for filing a § 2254 application.
      The district court agreed with Thaler and held the application untimely,
granted Thaler’s motion for summary judgment, and dismissed the application.
The district court also denied a COA. Richards filed a timely notice of appeal.
      We granted a COA on the following issues: “(1) whether in light of
Campbell v. State, 320 S.W.3d 338, 339 (Tex. Crim. App. 2010), Richards’ state
post-conviction petition should be deemed filed on the date that he placed it into
the prison mail system and (2) whether Richards is entitled to equitable tolling.”
                                         II
      When reviewing the denial of habeas relief, we review issues of law de
novo. Hardemon v. Quarterman, 516 F.3d 272, 274 (5th Cir. 2008) (citing Moody
v. Johnson, 139 F.3d 477, 480 (5th Cir. 1998)). We review de novo an order
dismissing a habeas petition as time-barred under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Causey v. Cain, 450 F.3d 601, 603 (5th
Cir. 2006).
                                        III
      A person in state custody has one year to apply for a writ of habeas corpus
in federal court. 28 U.S.C. § 2244(d)(1). The one-year period begins to run, as
relevant here, on the date the conviction became final at the conclusion of the
time to seek direct review, § 2244(d)(1)(A), though the period is tolled while a
properly filed state post-conviction petition is pending, § 2244(d)(2). Where the
applicant files his or her state post-conviction petition after the time for filing a



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§ 2254 application has lapsed, the state petition does not operate to toll the
one-year limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
      In Houston v. Lack, the Supreme Court held that a pro se prisoner’s notice
of appeal under Federal Rule of Appellate Procedure 4(a)(1) is deemed filed as
of the date it is delivered to prison officials for mailing. 487 U.S. 266, 270 (1988).
      The situation of prisoners seeking to appeal without the aid of
      counsel is unique. Such prisoners cannot take the steps other
      litigants can take to monitor the processing of their notices of appeal
      and to ensure that the court clerk receives and stamps their notices
      of appeal before the 30-day deadline. Unlike other litigants, pro se
      prisoners cannot personally travel to the courthouse to see that the
      notice is stamped “filed” or to establish the date on which the court
      received the notice. Other litigants may choose to entrust their
      appeals to the vagaries of the mail and the clerk’s process for
      stamping incoming papers, but only the pro se prisoner is forced to
      do so by his situation. And if other litigants do choose to use the
      mail, they can at least place the notice directly into the hands of the
      United States Postal Service (or a private express carrier); and they
      can follow its progress by calling the court to determine whether the
      notice has been received and stamped, knowing that if the mail goes
      awry they can personally deliver notice at the last moment or that
      their monitoring will provide them with evidence to demonstrate
      either excusable neglect or that the notice was not stamped on the
      date the court received it. Pro se prisoners cannot take any of these
      precautions; nor, by definition, do they have lawyers who can take
      these precautions for them. Worse, the pro se prisoner has no choice
      but to entrust the forwarding of his notice of appeal to prison
      authorities whom he cannot control or supervise and who may have
      every incentive to delay. No matter how far in advance the pro se
      prisoner delivers his notice to the prison authorities, he can never
      be sure that it will ultimately get stamped filed on time. And if there
      is a delay the prisoner suspects is attributable to the prison
      authorities, he is unlikely to have any means of proving it, for his
      confinement prevents him from monitoring the process sufficiently
      to distinguish delay on the part of prison authorities from slow mail
      service or the court clerk’s failure to stamp the notice on the date
      received. Unskilled in law, unaided by counsel, and unable to leave
      the prison, his control over the processing of his notice necessarily
      ceases as soon as he hands it over to the only public officials to

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      whom he has access-the prison authorities-and the only information
      he will likely have is the date he delivered the notice to those prison
      authorities and the date ultimately stamped on his notice.
Id. at 270–72. We extended this rule, the “prison mailbox rule,” to other
submissions of pro se inmates. See, e.g., Spotville v. Cain, 149 F.3d 374, 378 (5th
Cir. 1998) (holding § 2254 applications deemed filed on date inmate tenders
petition to prison officials for mailing).
      In Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999), however, we declined
to apply the prison mailbox rule to a Texas post-conviction petition for the
purpose of determining whether the petition tolled the statute of limitations
under § 2244(d)(2). We held, “when a prisoner asserts that his ability to file a
federal habeas petition has been affected by a state proceeding, we will examine
the facts to determine whether the prisoner is entitled to equitable tolling under
§ 2244(d)(1).” Id. at 402.
      In Causey v. Cain we clarified that Coleman was merely interpreting
Texas law. 450 F.3d 601, 605–06 (5th Cir. 2006) (“[T]he Coleman decision was
concerned with the imposition of a federal filing rule upon a sovereign state
court.”). We held that when a state application is properly filed is a question of
state law:
             Coleman does not require that we ignore the abundance of
      Louisiana case law following the prison mailbox rule. Although its
      reasoning is less than clear, Coleman is best understood as an
      interpretation of Texas law. . . . This circuit, like most, holds that a
      properly filed state application for collateral review is one submitted
      according to the state’s procedural requirements. At the time this
      Court decided Coleman, Texas law was unclear on, and arguably
      averse to, the prison mailbox rule. Implicit in Coleman’s decision
      not to extend the mailbox rule to . . . state habeas applications is the
      principle that state courts have the right to interpret state rules of
      filing and are not bound by Houston’s construction of federal filing
      rules.



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Id. at 605 (internal citations, footnotes, and quotation marks omitted). Because
Louisiana had chosen to adopt the prison mailbox rule for filings by pro se
prisoners, under Louisiana law the petitioner’s application was deemed filed
when he gave it to the prison authorities and not when it was stamped by the
court clerk. Id. at 606–07.
      In Howland v. Quarterman, 507 F.3d 840, 841 (5th Cir. 2007), we
considered whether, in light of Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004),
a Texas Supreme Court case applying the prison mailbox rule to prisoners who
file civil actions under Texas’ Inmate Litigation Act, the prison mailbox rule
extends to Texas post-conviction petitions. We refused to extend the rule to state
post-conviction petitions for two reasons. First, we noted that the Texas Court
of Criminal Appeals had clearly explained that a state post-conviction petition
was a criminal proceeding, not a civil action, and reasoned that Texas’ adoption
of the prison mailbox rule for civil cases did not affect the state’s filing
requirements for criminal matters. Howland, 507 F.3d at 844–45 (citing Aranda
v. District Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006)). Second, we
explained Warner did not apply where there was no filing deadline. Id. at 845.
In support of this determination, we cited an intermediate state appellate court’s
ruling that Rule 5 of the Texas Rules of Civil Procedure, which deems a pleading
timely filed if it is placed in the mail on or before the filing deadline and filed by
the court within ten days after the deadline, did not apply to a submission in a
civil action where there was no filing deadline. Id. (citing In re Hearn, 137
S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding)); see TEX. R.
CIV. P. 5. Because Article 11.07 of the Texas Code of Criminal Procedure—the
provision governing post-conviction petitions—also contained no filing deadline,
we reasoned the prison mailbox rule would not apply even if Warner extended
to criminal proceedings. Howland, 507 F.3d at 845.



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         Recently, in Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App.
2010), the Texas Court of Criminal Appeals held the prison mailbox rule also
applies in criminal proceedings. A defendant challenged the appellate court’s
determination that his pro se notice of appeal was not timely filed and argued
that the prison mailbox rule should apply. Id. at 340–41. The Texas Court of
Criminal Appeals found persuasive the Supreme Court’s observations in
Houston that a prisoner lacks control over how and when a prison mails a notice
of appeal, has no way of knowing if there has been a delay by prison staff, has
no recourse in the case of a delay, and is unable to personally deliver the notice
of appeal. Id. at 342–43. The court recognized that the Texas Supreme Court
had applied the prison mailbox rule in civil cases. Id. at 343. The court went
on to explain that it likewise would not “penalize a pro se inmate who timely
delivers a document to the prison mailbox” and held “that the pleadings of pro
se inmates shall be deemed filed at the time they are delivered to prison
authorities for forwarding to the court clerk.” Id. at 344.
         Campbell’s application of the prison mailbox rule to criminal proceedings
thus directly undermines our determination in Howland that the prison mailbox
rule does not apply to Texas post-conviction petitions. See Howland, 507 F.3d
at 844 (“[A] properly filed state application for collateral review is one submitted
according to the state’s procedural requirements.”) (alterations removed);
Causey, 450 F.3d at 606 (looking to state law to determine whether prison
mailbox rule applies to Louisiana post-conviction petitions). The primary basis
for our decision in Howland—that Texas does not apply the prison mailbox rule
in criminal proceedings, of which post-conviction proceedings are a part—has
been contradicted by Campbell’s holding that the rule does apply in criminal
cases.
         Thaler contends that even in criminal cases the prison mailbox rule is
limited to filings that involve a deadline, relying on Howland as well as

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pre-Campbell cases addressing the grace period described in Rule 5 of the Texas
Code of Civil Procedure. As Thaler points out, in Howland we explained that the
prison mailbox rule was inapplicable in civil cases where there was no filing
deadline and thus would not apply to Texas post-conviction petitions even if the
rule extended to criminal proceedings. Howland, 507 F.3d at 845. In Howland,
however, we were being asked to extend a rule applicable to Texas civil cases to
criminal proceedings. See Howland, 507 F.3d at 844. To reach our conclusion
that the rule could not apply absent a filing deadline, we looked to a Texas case
construing Texas’ civil procedure rules. See id. at 845. In Campbell, however,
the court did not limit its holding to situations involving filing deadlines, but
instead extended it to “pleadings” of pro se inmates in criminal proceedings
generally.
              Like our sister courts, we decline to penalize a pro se inmate
       who timely delivers a document to the prison mailbox. We find the
       analysis of the United States Supreme Court in Houston v. Lack to
       be compelling. . . . We hold that the pleadings of pro se inmates shall
       be deemed filed at the time they are delivered to prison authorities
       for forwarding to the court clerk.
Campbell, 320 S.W.3d at 343–44. Neither Campbell nor any other case restricts
Texas’ application of the prison mailbox rule in criminal cases to circumstances
where there is a filing deadline.1 We must apply Campbell’s holding that under
Texas law the pleadings of pro se inmates, including petitions for state post-
conviction relief, are deemed filed at the time they are delivered to prison
authorities, not at the time they are stamped by the clerk of the court. See

       1
         Indeed, the Texas Court of Criminal Appeals recently issued an order in a post-
conviction proceeding citing Campbell and directing the trial court to determine when certain
post-conviction petitions submitted under Article 11.07 “were delivered to prison authorities”
and whether they were filed before other petitions were denied. Ex parte Macon, Nos.
WR-76,956-05 & WR-76,956-06, 2012 WL 5363041, at * 1 (Tex. Crim. App. Oct. 31, 2012).
Although this order is unpublished, it supports the proposition that in criminal proceedings,
the Texas Court of Criminal Appeals did not intend to limit the prison mailbox rule to
circumstances where there is a filing deadline.

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Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (holding
one panel may overturn another panel’s decision where there is an intervening
change in law). Therefore, we hold under Texas law Richards’ § 2254 application
was deemed filed on October 12, 2010, the date he turned the application over
to prison authorities to be filed. Accordingly, we do not reach Richards’ claim
that he is entitled to equitable tolling.
                                        IV
      For these reasons, we REVERSE and REMAND.




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