     Case: 14-30056      Document: 00513331767         Page: 1    Date Filed: 01/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30056
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          January 6, 2016
DANIEL W. RICHARDSON,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-2443


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Daniel W. Richardson was convicted by a jury of second degree murder
and was sentenced to life imprisonment. His conviction and sentence were
affirmed on direct appeal on March 27, 2009. State v. Richardson, 5 So. 3d
1060 (La. Ct. App. 2009) (table).            Richardson filed a 28 U.S.C. § 2254
application challenging his conviction and sentence for second degree murder.
The district court dismissed Richardson’s § 2254 application as time barred.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30056

      The key issue in Richardson’s appeal is the date his conviction became
final in the Louisiana state courts because his § 2254 application needed to be
filed within one year of that date (plus any tolled time attributable to a state
application for postconviction relief).      The district court found that
Richardson’s conviction became final on April 27, 2009, the day his 30-day
period expired for seeking direct review in the Louisiana Supreme Court.
Richardson contends that his conviction became final much later, on January
8, 2010, the day the Louisiana Supreme Court issued a one-word opinion
denying the appeal that he had filed after the expiration of the 30-day deadline.
He argues that because the denial does not say that his direct appeal was
untimely, we should construe the denial as a full consideration of his appeal.
If Richardson’s conviction did not become final until January 2010 as he
argues, then the tolling resulting from his subsequent state habeas application
would render the federal petition he filed in 2013 timely.
      We review de novo a district court’s denial of a § 2254 application on
procedural grounds. Matthis v. Cain, 627 F.3d 1001, 1003 (5th Cir. 2010). The
record reflects that Richardson deposited in the prison mail system his first
writ application on direct review within 30 days of the intermediate appellate
court’s judgment affirming his conviction and sentence.         That application,
however, was returned as unfiled for failing to comply with Louisiana Supreme
Court Rule X, § 2(a) and did not constitute a properly filed pleading. See
Thomas v. Goodwin, 786 F.3d 395, 398–99 (5th Cir. 2015), petition for cert. filed
(Sept. 13, 2015) (No. 15-6212).
      Richardson sent another writ application on May 3, 2009, outside the
30-day timely appeal window.       This time, the Louisiana Supreme Court
apparently accepted Richardson’s presumably-compliant writ application. On
January 8, 2010, the Louisiana Supreme Court issued a single word opinion



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                                No. 14-30056

denying Richardson’s application.    Richardson asserts that the Louisiana
Supreme Court considered his writ application timely, even though the initial
pleading did not comply with the court rules, because the one-word denial did
not necessarily mean that the application was not filed properly.
      This court has considered the import of Rule X’s prohibition against
extensions in determining the date on which a state prisoner’s conviction
becomes final under § 2244(d)(1)(A). See Butler v. Cain, 533 F.3d 314, 316–17
(5th Cir. 2008). In Butler, this court determined that a Louisiana prisoner’s
untimely writ application on direct appeal did not affect the date on which the
prisoner’s conviction became final notwithstanding that the Louisiana
Supreme Court subsequently issued a one-word denial of the prisoner’s writ
application.   Id. at 317–20.   This court rejected the argument that the
Louisiana Supreme Court’s one-word denial indicated that the court had
reached the merits of the untimely writ application and instead construed the
court’s one-word order as a denial on the ground of untimeliness. Id. at 318–
19. The holding in Butler is controlling. Under Butler, Richardson’s conviction
became final on April 27, 2009, the date he could no longer seek timely review
before the Louisiana Supreme Court. Because Richardson failed to submit his
§ 2254 application within a year of his conviction becoming final, the judgment
of the district court is AFFIRMED.




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