     Case: 13-30707      Document: 00513190156         Page: 1    Date Filed: 09/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-30707
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
CHRISTOPHER S. O’NEAL,                                                  September 11, 2015
                                                                           Lyle W. Cayce
                            Petitioner-Appellant                                Clerk

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

                            Respondent-Appellee



                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:12-CV-2513


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM: *
       Christopher S. O’Neal, Louisiana prisoner # 339935, appeals the district
court’s dismissal with prejudice of his 28 U.S.C. § 2254 petition in which he
challenged his conviction for second degree murder and the life sentence
imposed. O’Neal argues that the district court erred in dismissing his federal
petition 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-30707       Document: 00513190156    Page: 2   Date Filed: 09/11/2015


                                   No. 13-30707

         We review de novo a district court’s order dismissing a federal habeas
petition as time barred under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). Causey v. Cain, 450 F.3d 601, 603 (5th Cir. 2006).
Factual findings underlying the legal ruling, however, are reviewed for clear
error. United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008). The clear
error standard of review “only requires a factual finding to be plausible in light
of the record as a while.” United States v. Rodriguez, 630 F.3d 377, 380 (5th
Cir. 2001).
         AEDPA provides a one-year statute of limitations for the filing of
applications for habeas corpus by persons who are in custody pursuant to the
judgment of a state court. This limitation period generally 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).
However, the federal limitations period is tolled during the pendency of a
properly filed state petition. 28 U.S.C. § 2244(d)(2). The timeliness of O’Neal’s
federal habeas petition therefore depends on the date of filing of his state
petition. If, as he claims, O’Neal filed his state petition on September 30, 2011,
tolling began on that date and his federal petition was timely when filed on
September 17, 2012. If, on the other hand, O’Neal filed his state petition on
October 3, 2011, the limitations period ended on September 13, 2012, and
O’Neal’s federal petition was time barred.
         O’Neal’s state petition was filed “as of the moment [it was] delivered to
prison officials for mailing.” Medley v. Thaler, 660 F.3d 833, 840 (5th Cir. 2011)
(quoting Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999)).             After
considering the evidence, the district court determined that moment to have
occurred on October 3, 2011. This is a factual finding reviewable only for clear
error.



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    Case: 13-30707     Document: 00513190156     Page: 3   Date Filed: 09/11/2015


                                  No. 13-30707

      The district court’s conclusion, based on the prison mail room receipt
showing that the documents were submitted to prison officials for mailing on
October 3, 2011, is certainly plausible. The evidence that O’Neal has provided
in support of his position is ambiguous at best. That his state court petition
was dated September 30, 2011, does not serve as proof of when it was filed.
That his request for funds to enable mailing of the petition was dated
September 30, 2011, does not conclusively establish that filing in fact occurred
on that day, especially when the same document also bears the date of October
4, 2011. O’Neal is correct that any delay on the part of prison officials in the
handling of his mail cannot be held against him, but that the receipt for the
mailing is dated October 3, 2011, does not establish that any such delay
occurred.
      Clear error review “is more than a rubber stamp.” United States v.
Sanders, 343 F.3d 511, 528 (5th Cir. 2003). After considering the record as a
whole, we find that it is plausible, even likely, that O’Neal provided prison
officials with his state petition on October 3, 2011. The judgment of the district
court is therefore AFFIRMED.




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