     Case: 17-30975      Document: 00515263753         Page: 1    Date Filed: 01/08/2020




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

                                                                             FILED
                                      No. 17-30975                     January 8, 2020
                                                                        Lyle W. Cayce
MARICE S. NALLS,                                                             Clerk


              Petitioner - Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CV-734


Before STEWART, CLEMENT, and HO, Circuit Judges.
PER CURIAM:*
       Marice Nalls appeals the district court’s dismissal of his federal habeas
corpus application as untimely. For the following reasons, we REVERSE and
REMAND. 1




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1  Judge Ho dissents. Although on de novo review he might have granted equitable
tolling on grounds of attorney abandonment, he would affirm on the ground that the district
court did not abuse its discretion.
     Case: 17-30975       Document: 00515263753         Page: 2    Date Filed: 01/08/2020



                                      No. 17-30975
                                    I. Background
       In 2008, Marice Nalls was convicted of aggravated rape 2 and armed
robbery after a bench trial before a Louisiana state district judge. Dele
Adebamiji represented Nalls at trial. On June 12, 2009, Nalls appealed his
conviction to Louisiana’s First Circuit Court of Appeal. Adebamiji filed the
appeal on Nalls’s behalf. Several days later, Adebamiji sent Nalls a letter
informing him that he could no longer serve as his lawyer. Adebamiji wrote
that his “representation stops at the filing of your appeal[,] and I have given
your name and address to the court of appeal. So please watch out for all and
any other important dates in the future.” Although Adebamiji sent the letter
of withdrawal to Nalls, he never moved to withdraw as Nalls’s counsel of record
before the First Circuit.
       In July 2009, the First Circuit granted Nalls leave to file a pro se
supplemental brief in support of his appeal. Nalls did so on August 12, 2009.
Not long after, Nalls began writing Adebamiji. The first of four letters was
written on October 13, 2009. 3 In it, Nalls stated that he knew Adebamiji was
no longer representing him. But Nalls also expressed a belief that the First
Circuit would send notice of its decision to Adebamiji instead of Nalls because
Adebamiji was Nalls’s counsel of record at the time the appeal was filed.
Indeed, court rules required the First Circuit to send notice of its decision in
Nalls’s case “to all counsel of record, and to all parties not represented by



       2At the time of Nalls’s conviction, the crime of “aggravated rape” was codified at
Louisiana Revised Statutes 14:42. The statute recently was amended, and the same crime is
now called “First Degree Rape.” Act. No. 256, § 1, 2015 La. Acts 1785, 1785–86.

       3 The State attached to its brief evidence presented for the first time on appeal that
calls into question the dates on which these letters were written or mailed. But this court
cannot consider new evidence submitted for the first time on appeal. Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). Accordingly, this court must rely on the
evidence presented in the lower court.
                                             2
     Case: 17-30975        Document: 00515263753           Page: 3     Date Filed: 01/08/2020



                                        No. 17-30975
counsel.” La. Ct. App. Unif. R. 2-17.1. By failing to move to withdraw as Nalls’s
counsel of record, Adebamiji remained Nalls’s agent for notice of the First
Circuit’s decision long after he sent his withdrawal letter to Nalls.
       Over the next year and a half, Nalls wrote three more letters to
Adebamiji. In each, he sought a status update on his case. Adebamiji never
wrote back. Nalls also had his mother contact Adebamiji by phone. Nalls’s
mother swore that she spoke with Adebamiji on several occasions in 2010 and
2011. She was told by Adebamiji on multiple occasions that he had not received
a copy of the First Circuit’s decision.
       Unbeknownst to Nalls, the First Circuit had affirmed his conviction on
October 23, 2009—only 10 days after he wrote his first letter to Adebamiji.
Nalls finally received notice of the decision in April 2011 after asking his
mother to contact the court directly. The deadline for Nalls to seek direct
review of the First Circuit’s decision at the Louisiana Supreme Court had long
since expired. 4 Nalls nevertheless moved quickly to continue challenging his
conviction.
       On July 1, 2011, Nalls filed at the Louisiana Supreme Court an out-of-
time application for certiorari or review of the First Circuit’s decision. On
October 11, 2011—before the Louisiana Supreme Court ruled on his request—
Nalls filed a pro se application for state post-conviction relief in the district
court. In April 2012, the Louisiana Supreme Court denied Nalls’s request for
untimely direct review. On March 15, 2013, the state district court dismissed
Nalls’s application for post-conviction relief. The First Circuit ultimately
denied Nalls’s writ seeking review of the district court’s decision. Nalls sought


       4  Louisiana Supreme Court Rule X, § 5(a) states: “An application seeking to review a
judgment of the court of appeal . . . shall be made within thirty days of the mailing of the
notice of the original judgment of the court of appeal . . . .” The First Circuit mailed notice of
its original judgment to Adebamiji the same day it issued its decision: October 23, 2009. Thus,
Nalls’s deadline to seek review at the Supreme Court was on November 23, 2009.
                                                3
    Case: 17-30975     Document: 00515263753     Page: 4   Date Filed: 01/08/2020



                                  No. 17-30975
further review from the Louisiana Supreme Court. On November 7, 2014, it
granted his request in part, vacating his armed robbery conviction on
prescription grounds but leaving undisturbed his rape conviction. State ex rel.
Nalls v. State, 2013-2806, p.1 (La. 11/7/14); 152 So. 3d 164. Only 12 days later,
on November 19, 2014, Nalls filed his first federal habeas application under 28
U.S.C. § 2254.
      On November 7, 2017, the magistrate judge recommended that Nalls’s
habeas application be dismissed as time-barred. The magistrate judge
reasoned that Nalls’s application was untimely because more than a year
elapsed between the deadline for Nalls to seek direct review of the First
Circuit’s affirmance of his conviction and the date he filed his federal habeas
application, excluding the time he spent pursuing post-conviction relief in state
court. See 28 U.S.C. § 2244(d) (requiring a state prisoner to file his federal
habeas application within one year of “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking
such review,” excluding “[t]he time during which a properly filed application
for State post-conviction or other collateral review . . . is pending”). The
magistrate judge then declined to recommend equitably tolling the
untimeliness of Nalls’s application, reasoning that Nalls failed to diligently
pursue his rights awaiting notice of the First Circuit’s decision on his direct
appeal.
      On December 6, 2017, the district court adopted the magistrate judge’s
Report and Recommendation, dismissing Nalls’s application as untimely. The
district court declined to issue a Certificate of Appealability (“COA”). Just five
days after the district court issued its decision, Nalls filed an appeal in this
court. The court granted him a COA on the issue of whether the district court
erred in refusing to equitably toll the untimeliness of his application.


                                        4
    Case: 17-30975     Document: 00515263753       Page: 5   Date Filed: 01/08/2020



                                   No. 17-30975
                            II. Standard of Review
      “A district court’s refusal to invoke equitable tolling is reviewed for abuse
of discretion.” Jackson v. Davis, 933 F.3d 408, 410–11 (5th Cir. 2019) (quoting
Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009) (per curiam)).


                                  III. Analysis
       A state prisoner seeking habeas relief in federal court under 28 U.S.C.
§ 2254 must file his application no later than one year from the latest of four
possible dates. 28 U.S.C. § 2244(d)(1). The relevant date here is “the date on
which the [state court] judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” Id.
§ 2244(d)(1)(A). State law determines the applicable expiration date for
seeking direct review of a state court judgment. Causey v. Cain, 450 F.3d 601,
606 (5th Cir. 2006). Under Louisiana Supreme Court Rule X, § 5(a), “[a]n
application seeking to review a judgment of the court of appeal . . . after an
appeal to that court . . . shall be made within thirty days of the mailing of the
notice of the original judgment of the court of appeal . . . .”
      Generally, then, a Louisiana prisoner’s federal habeas application
should be dismissed as untimely when, as here, the prisoner failed to file his
federal habeas application until more than a year after the court of appeal
mailed notice of its decision to the prisoner’s counsel of record. 28 U.S.C.
§ 2244(d). Nevertheless, “the one-year period of limitations in § 2244(d)(1) . . .
is to be construed as a statute of limitations, and not a jurisdictional bar. As
such, in rare and exceptional circumstances, it can be equitably tolled.” Davis
v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
      To benefit from equitable tolling, “[a] petitioner’s failure to satisfy the
statute of limitations must result from external factors beyond his control;
delays of the petitioner’s own making do not qualify.” Hardy, 577 F.3d at 598
                                         5
    Case: 17-30975     Document: 00515263753     Page: 6   Date Filed: 01/08/2020



                                  No. 17-30975
(quoting In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006)). “The petitioner bears
the burden of establishing that equitable tolling is warranted.” Id.
      “[A] court may equitably toll limitations if the petitioner establishes ‘(1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.’”
Jackson, 933 F.3d at 410 (quoting Holland v. Florida, 560 U.S. 631, 649
(2010)). “Equitable tolling is ‘a discretionary doctrine that turns on the facts
and circumstances of a particular case.’” Id. (quoting Fisher v. Johnson, 174
F.3d 710, 713 (5th Cir. 1999)). Courts should be “‘cautious not to apply the
statute of limitations too harshly,’ especially when reviewing dismissal of a
petitioner’s first habeas petition.” Id. (quoting Fisher, 174 F.3d at 713).


A. Due Diligence
      “The diligence required for equitable tolling purposes is reasonable
diligence, not maximum feasible diligence.” Id. at 411 (quoting Holland, 560
U.S. at 653). “What a petitioner did both before and after the extraordinary
circumstances that prevented him from timely filing may indicate whether he
was diligent overall.” Id.
      Marice Nalls has diligently pursued his rights ever since he was
convicted in 2008. He timely appealed his conviction to the First Circuit. He
then filed a pro se brief to supplement the brief filed by his attorney. Over a
period of less than two years, he wrote to his attorney four times under the
reasonable impression that it could be many months before the First Circuit
decided his case. He also reasonably believed that once the court decided his
case, it likely would send notice of its decision to Adebamiji, not Nalls. He even
had his mother contact Adebamiji directly on multiple occasions during that
time period. Based on his lawyer’s responses to his mother’s inquiries, Nalls
had no reason to believe he needed to contact the First Circuit directly.
                                        6
     Case: 17-30975       Document: 00515263753          Page: 7     Date Filed: 01/08/2020



                                       No. 17-30975
Nevertheless, that’s exactly what he did after less than two years had passed
since his appeal had been filed.
       Armed with notice of the court’s affirmance of his conviction, Nalls again
acted with diligence. He sought out-of-time review from the Louisiana
Supreme Court. Before the court ruled on his request—with the deadline to
seek state post-conviction relief looming—he filed for such relief. At every step
of the way in his post-conviction proceedings, he timely sought further review.
The Louisiana Supreme Court ultimately ruled partly in his favor. Less than
two weeks later, he sought relief in federal court. There, he waited three years
for a decision on his habeas application. Once the district court dismissed his
application, he waited only five days before appealing to this court.
       It does not escape this court—as was noted below 5—that Nalls could
have contacted the First Circuit sooner than he did. But the court’s dependence
on this fact was an abuse of discretion. In Jackson v. Davis, this court held that
a petitioner acted with reasonable diligence even though he did nothing for 15
months awaiting a decision from a court. 933 F.3d at 413. Because the
petitioner was pro se, eventually contacted the court directly, and acted quickly
once he finally received notice of the court’s decision, the court in Jackson held
that the district court abused its discretion in refusing to equitably toll the
untimeliness of the petitioner’s federal habeas application. Id. at 411–13.
       Jackson was not decided until after the parties submitted their briefs in
this case. Nevertheless, because it is a published decision, this panel is bound
by it. Legendre v. Huntington Ingalls, Inc., 885 F.3d 398, 403 (5th Cir. 2018)
(noting that panels of this court are bound by prior published opinions).
Because the petitioner in Jackson was reasonably diligent, it follows that Nalls


       5The district court denied Nalls’s application as untimely “for reasons set forth in the
magistrate judge’s Report . . . .” We thus rely on the magistrate judge’s November 7, 2017
Report and Recommendation to discern the reasons behind the district court’s decision.
                                              7
    Case: 17-30975     Document: 00515263753      Page: 8   Date Filed: 01/08/2020



                                  No. 17-30975
also was reasonably diligent. While the petitioner in Jackson sat idly for 15
months awaiting a decision from the court, Nalls wrote multiple letters to his
counsel of record and had his mother contact the attorney directly. In any
event, the court in Jackson reiterated that “any sort of temporal cut-off for
diligence contradicts our precedent.” Jackson, 933 F.3d at 413 (citing Fisher,
174 F.3d at 713). Considered in context, the fact that Nalls waited to contact
the First Circuit directly does not mean that he failed to pursue his rights with
due diligence.


B. Extraordinary Circumstances
      In Jackson, the court held that “there [was] no dispute” about whether
an extraordinary circumstance had prevented the petitioner from timely filing
his federal habeas application. Id. at 411. There, the 18-month delay before the
petitioner received notice of the applicable court’s decision “easily satisfie[d]”
the extraordinary circumstances requirement. Id. (citing Hardy, 577 F.3d at
598, and Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (per curiam)).
Here, the delay was even longer: about 22 months. Under Jackson, this would
seem to “easily satisf[y]” the extraordinary circumstances element for
equitable tolling purposes. See id.
      We are mindful that equitable tolling “must result from external factors
beyond [the petitioner’s] control.” Hardy, 577 F.3d at 598 (quoting In re Wilson,
442 F.3d at 875). But here, that is exactly what happened. The court in Jackson
emphasized the fact that the petitioner was pro se and that the relevant court
had breached its obligation to notify the petitioner directly about the status of
his case. Jackson, 933 F.3d at 413. While it would be unfair to place the blame
for the delayed notice here on the First Circuit, it is true that the court was
obligated to notify Nalls of its decision by sending a copy of it to his counsel of
record, Adebamiji. Even though it did that, Adebamiji never forwarded the
                                        8
    Case: 17-30975    Document: 00515263753     Page: 9   Date Filed: 01/08/2020



                                 No. 17-30975
decision to Nalls, despite Nalls requesting updates several times after the First
Circuit said it mailed the decision to Adebamiji. What’s clear in all of this is
that a series of events beyond Nalls’s control and not of his own making
prevented him from timely filing his petition. Such events are an extraordinary
circumstance.


                               IV. Conclusion
      For the foregoing reasons, the district court’s judgment dismissing
Nalls’s application as untimely is REVERSED. The case is REMANDED for
further proceedings consistent with this opinion.




                                       9
