     Case: 18-30374   Document: 00515418007    Page: 1   Date Filed: 05/15/2020




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

                                                                        FILED
                                No. 18-30374                        May 15, 2020
                                                                   Lyle W. Cayce
COLBY DRANOEL LEONARD,                                                  Clerk


             Petitioner - Appellant

v.

KEITH DEVILLE, WARDEN, WINN CORRECTIONAL CENTER,

             Respondent - Appellee




                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.

                      ON PETITION FOR REHEARING

STUART KYLE DUNCAN, Circuit Judge:
      Treating the petition for en banc rehearing as a petition for panel
rehearing, we grant rehearing, withdraw our opinion dated February 3, 2020,
and substitute the following opinion:
      Colby Leonard, a Louisiana state prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition as time-barred. Leonard was granted
a Certificate of Appealability (“COA”) to consider whether he was entitled to
statutory tolling of the federal limitation period pursuant to 28 U.S.C.
§ 2244(d)(2). The specific issue, which has divided federal district courts in
    Case: 18-30374     Document: 00515418007     Page: 2   Date Filed: 05/15/2020



                                  No. 18-30374
Louisiana, is this: when a state prisoner is implicitly granted extra time to seek
supervisory writs from the denial of his state post-conviction application—and
he does so within that time—does his initial application therefore remain
“pending” under the tolling provision in § 2244(d)(2)? We hold that the answer
is yes, a conclusion dictated by our own precedents and by the Supreme Court’s
teaching that a state post-conviction application remains “pending” for
statutory tolling purposes “as long as the ordinary state collateral review
process is ‘in continuance.’” Carey v. Saffold, 536 U.S. 214, 219–20 (2002).
Concluding that Leonard was entitled to statutory tolling and that his petition
was therefore not time-barred, we vacate the district court’s dismissal and
remand for further proceedings.
                                        I.
      Leonard was convicted of armed robbery under Louisiana law in 2008.
His conviction was affirmed on direct appeal in March 2009, and the Louisiana
Supreme Court denied review January 8, 2010. State v. Leonard, 24 So.3d 859
(La. 2010). The time for seeking certiorari from the United States Supreme
Court expired April 8, 2010. S. Ct. Rule 13. Leonard then waited 308 days,
until February 10, 2011, to apply to the state trial court for post-conviction
relief (“PCR”), which was dismissed “as without merit” May 1, 2013. On May
23, 2013, he applied to a state appellate court for supervisory writs, which were
denied August 27, 2013. The appellate court found Leonard failed to include
supporting record materials as required by court rules. State v. Leonard, 2013
WL 12120742, at *1 (La. App. 1 Cir. Aug. 27, 2013) (unpublished); see La. Unif.
Ct. App. Rule 4-5. The court prohibited Leonard from supplementing his
application or seeking rehearing. Id. (citing La. Unif. Ct. App. Rules 2-18.7 &
4-9). However, the court also ruled that, “[i]n the event [Leonard] elects to file
a new application with this Court, the application must be filed on or before
October 22, 2013.” Id. Leonard filed a properly-supported writ application
                                        2
     Case: 18-30374      Document: 00515418007         Page: 3    Date Filed: 05/15/2020



                                      No. 18-30374
September 12, 2013, which was denied February 27, 2014. On March 19, 2014,
he sought review from the Louisiana Supreme Court, which was denied
January 9, 2015. State ex rel. Leonard v. State, 157 So.3d 591 (La. 2015).
       On February 4, 2015, Leonard filed a federal habeas corpus application.
The magistrate judge recommended denying the application as untimely under
the one-year limitation period. See 28 U.S.C. § 2244(d)(1). That conclusion was
based on the following calculations. The magistrate judge determined that the
federal clock started running when Leonard’s conviction became final April 8,
2010. See id. § 2244(d)(1)(A) (period runs from “the conclusion of direct review
or the expiration of the time for seeking such review”). The clock ticked from
April 9, 2010 until the filing of Leonard’s state PCR application February 10,
2011 (308 days), but then paused until May 31, 2013—that is, until the trial
court denied the PCR application May 1, 2013, and the 30-day period for
seeking review of that decision had elapsed. 1 The clock then began to run again
June 1, 2013. Consequently, the magistrate judge concluded that the one-year
limitation period expired long before Leonard filed his federal petition
February 4, 2015. 2
       Additionally, the magistrate judge found that Leonard’s writ application
to the state appellate court—filed May 23, 2013, and denied August 27, 2013—
did not toll the federal clock because the appellate court found the application
was not “properly filed.” See id. § 2244(d)(2). As for the appellate court’s setting
a later date for filing another application, the magistrate judge noted that the


       1  See id. § 2244(d)(2) (period tolled while properly-filed state post-conviction
application is “pending”); Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001) (post-
conviction application remains “pending” under § 2244(d)(2) until time expires under state
law for seeking review of trial court judgment); La. Unif. Ct. App. Rule 4-3.
       Specifically, the period expired July 27, 2013—fifty-seven days after the clock began
       2

running again on June 1, 2013.


                                             3
     Case: 18-30374       Document: 00515418007          Page: 4     Date Filed: 05/15/2020



                                       No. 18-30374
law was “unclear” whether that “effectively amounted to an extension of time
that operated to toll the limitation period.” 3 The magistrate reasoned, however,
that resolving that question was unnecessary because any tolling from the
putative extension would have made no difference to the timeliness of
Leonard’s federal application.
       Over Leonard’s objections, the district court adopted the magistrate’s
recommendation and dismissed Leonard’s petition as time-barred. The district
court denied Leonard a COA. He sought a COA from our court, which was
granted December 17, 2018.
                                              II.
       We review de novo the district court’s ruling that a habeas corpus
petition was untimely. Emerson v. Johnson, 243 F.3d 931, 932 (5th Cir. 2001)
(citation omitted).
                                             III.
       Leonard sought a COA to contest the district court’s ruling that his
federal habeas application was time-barred. A COA was granted on the
following question:
       Because it is arguable that the state court implicitly granted an
       extension of time within which to file a properly supported writ
       application, jurists of reason could debate whether the district
       court erred in determining that the limitation period was not
       continuously tolled during the pendency of the state post-
       conviction proceedings. See Slack v. McDaniel, 529 U.S. 473, 484
       (2000); see also Grillette v. Warden, Winn Corr. Ctr., 372 F.3d 765,
       769–76 (5th Cir. 2004).



       3 The magistrate noted that some district court decisions had interpreted such an
action by a state appellate court as an “implicit” grant of an extension of time to file a writ
application. See, e.g., Roberts v. Cain, 2015 WL 7080546, at *2 (E.D. La. Nov. 13, 2015);
Holton v. Cain, 2014 WL 3189737, at *6 (M.D. La. July 8, 2014). At least one decision,
however, had reached a different conclusion, albeit “without discussion.” See Howard v. Cain,
2011 WL 3794909, at *4 (M.D. La. Aug. 2, 2011).
                                              4
    Case: 18-30374     Document: 00515418007      Page: 5   Date Filed: 05/15/2020



                                  No. 18-30374
Leonard filed a pro se appellate brief arguing, in effect, that (1) the state
appellate court gave him extra time to file a proper writ contesting the denial
of his state PCR application, (2) he did so within that extra time, and
(3) therefore, his original state PCR application remained “pending,”
continuously tolling the one-year limitations period and making his federal
petition timely. See, e.g., Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012)
(“We give pro se briefs a liberal construction.” (citation omitted)).
      Under 28 U.S.C. § 2244(d)(1), “[a] 1-year period of limitation shall apply
to an application for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court.” The one-year period is statutorily tolled
during the time that “a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is
pending.” Id. § 2244(d)(2); see also Wood v. Milyard, 566 U.S. 463, 468–69
(2012). As the text of § 2244(d)(2) provides, a state post-conviction application
triggers statutory tolling only if it is “properly filed” and only while it remains
“pending.” See, e.g., Larry v. Dretke, 361 F.3d 890, 893 (5th Cir. 2004)
(explaining a habeas petition may be “pending, but not properly filed”) (quoting
Artuz v. Bennett, 531 U.S. 4, 9 (2000)). “[A]n application is ‘properly filed’ when
its delivery and acceptance are in compliance with the applicable laws and
rules governing filings.” Id. (quoting Artuz, 531 U.S. at 8). An “application is
pending as long as the ordinary state collateral review process is ‘in
continuance.’” Saffold, 536 U.S. at 219–20.
      It is uncontested that Leonard’s state PCR application was “properly
filed” within the meaning of § 2244(d)(2). Under Louisiana law, a prisoner may
file a PCR application in the district court for the parish where he was
convicted. See La. Code Crim. Proc. art. 926(A); see also La. Unif. Ct. App.
Rules, App. A (Uniform Application for Post-Conviction Relief). Leonard filed
a PCR application in the 19th Judicial District Court for East Baton Rouge
                                        5
    Case: 18-30374     Document: 00515418007     Page: 6   Date Filed: 05/15/2020



                                  No. 18-30374
Parish on February 10, 2011. Nothing in the record suggests Leonard’s
application failed to “compl[y] with the applicable laws and rules governing
filing,” Larry, 361 F.3d at 893, which would have made it improperly filed
under § 2244(d)(2). To the contrary, the state opposed all of Leonard’s nineteen
claims as either procedurally barred or without merit; the commissioner
recommended dismissal of his claims “without merit” ; and the trial court
accordingly “dismissed” Leonard’s application “as without merit.” Cf. id.
(explaining that “whether an application has been ‘properly filed’ is quite
separate from the question whether the claims contained in the application are
meritorious and free of procedural bar”) (quoting Artuz, 531 U.S. at 9).
Moreover, the state appellate court’s subsequent dismissal of Leonard’s first
writ application also fails to suggest that Leonard’s PCR application was not
“properly filed” in district court. As explained, the appellate court ruled that
Leonard’s writ application failed to follow a rule governing the required
contents of filings in appellate courts. See La. Unif. Ct. App. Rule 4-5(A), (C)
(setting out items required in an “original application for writs” in the courts
of appeal).
      Because Leonard’s PCR application was “properly filed,” it therefore
tolled the federal limitations period under § 2244(d)(2) as long as the
application remained “pending.” How long his application remained pending is
the key issue in this appeal. If the application remained pending from its initial
filing date of February 10, 2011, until the Louisiana Supreme Court’s denial of
review on January 9, 2015, then all of that intervening time “shall not be
counted” towards the running of the one-year limitations period. § 2244(d)(2).
But the district court, adopting the magistrate judge’s recommendation, ruled
that Leonard’s application did not remain pending because the state appellate
court dismissed his first writ application as improperly filed. Leonard
contends, to the contrary, that the state appellate court simultaneously
                                        6
     Case: 18-30374       Document: 00515418007         Page: 7     Date Filed: 05/15/2020



                                       No. 18-30374
extended his time to file a proper writ application, keeping his PCR application
“pending” the entire time. This presents a thorny procedural question on which
federal district courts in Louisiana have reached differing conclusions. 4
       We begin our analysis by observing that the Supreme Court has
explained what it means for a state post-conviction application to remain
“pending” for purposes of § 2244(d)(2):
       [A]n application is pending as long as the ordinary state collateral
       review process is “in continuance”—i.e., “until the completion of”
       that process. In other words, until the application has achieved
       final resolution through the State’s post-conviction procedures, by
       definition it remains “pending.”

Saffold, 536 U.S. at 219–20; see also, e.g., Grillette, 372 F.3d at 769 (observing
Saffold “clarified” that a state habeas application is “pending, in the context of
§ 2244(d)(2), as long as the ordinary state collateral review process is ‘in
continuance’”) (cleaned up). This capacious understanding of the pendency
requirement, Saffold explained, promotes federal-state comity by requiring a
federal habeas petitioner to “invoke[e] one complete round of the State’s
established appellate review process,” thereby giving state courts the first
crack at correcting any constitutional problems. Saffold, 536 U.S. at 221
(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)) (cleaned up).
       For purposes of this appeal, then, the determinative question is whether
Leonard’s state post-conviction process remained “in continuance” from the
February 10, 2011 filing of his PCR application in the trial court until the


       4 Compare, e.g., Clarke v. Rader, 2012 WL 589207, at *2–6 (M.D. La. Jan. 20, 2012)
(finding initial PCR application did not remain “pending” given appellate court’s dismissal of
improper writ application, despite prisoner being given extension to file proper writ
application), aff’d on other grounds by Clarke v. Rader, 721 F.3d 339, 343–44 (5th Cir. 2013);
Howard, 2011 WL 3794909, at *1–4 (same), with Holton, 2014 WL 3189737, at *6 (concluding
initial PCR application remained “pending,” despite appellate court’s dismissal of improper
writ application, because appellate court extended time for filing proper writ application)
(citing Dixon v. Cain, 316 F.3d 553, 554 (5th Cir. 2003)).
                                              7
    Case: 18-30374    Document: 00515418007     Page: 8   Date Filed: 05/15/2020



                                 No. 18-30374
Louisiana Supreme Court’s denial of review on January 9, 2015. Saffold, 536
U.S. at 219–20; Grillette, 372 F.3d at 769. The district court answered in the
negative, given that the state appellate court dismissed as procedurally flawed
Leonard’s first supervisory writ application. Based on our analysis, however,
we are persuaded that this conclusion was mistaken.
      At the same time as it dismissed Leonard’s first writ application, the
state appellate court expressly allowed Leonard to file a new application “on or
before October 22, 2013.” We understand the appellate court’s action as
extending the time for Leonard to seek review of the trial court’s dismissal of
his PCR application. Under Louisiana law, a prisoner may seek review of the
dismissal of a PCR application, not by appeal, but instead by “[i]nvoking the
supervisory jurisdiction of the court of appeal.” La. Code Crim. Proc. art.
930.6(A). Typically, a prisoner must seek supervisory review no more than 30
days from the date of the trial court’s ruling. See La. Unif. Ct. App. Rule 4-3;
see also Dixon v. Cain, 316 F.3d 553, 555 (5th Cir. 2003) (observing that “Rule
4-3 of Louisiana’s Uniform Rules, Courts of Appeal, provides that the trial
court must state ‘a reasonable time,’ ‘not to exceed thirty days,’ in which the
applicant must apply to the appellate court.”). Nonetheless, either the trial
court or the appellate court “may extend the time for filing the application upon
the filing of a motion” within the return period. Dixon, 316 F.3d at 555
(discussing Rule 4-3); see also Brock v. Duhe, 521 So.2d 1162, 1162 (La. 1988);
State v. Bourg, 196 So.3d 737, 741–42 (La. App. 5th Cir. 2016) (same). Here,
the only logical reading of the appellate court’s action is that it granted
Leonard an extension of time for filing a proper writ application, either sua
sponte or because the court construed Leonard’s flawed-but-timely first
application as a request for more time. See State v. Goppelt, 993 So.2d 1188,
1189 (La. 2008) (per curiam) (explaining that the Rule 4-3 timeliness bar
“should be sparingly applied” where defendant does not “unreasonably delay”
                                       8
    Case: 18-30374     Document: 00515418007      Page: 9   Date Filed: 05/15/2020



                                  No. 18-30374
in seeking supervisory review). In any event, the State concedes on appeal that
the appellate court “allowed [Leonard] additional time to file a new
application.”
      In light of the appellate court’s extension of time—and Leonard’s filing a
proper writ application within that period—we conclude that Leonard’s state
post-conviction process remained “in continuance” and therefore “pending”
under § 2244(b)(2). See Saffold, 536 U.S. at 219–20; Dixon, 316 F.3d at 556.
      This conclusion follows from our cases interpreting the “pendency”
requirement in § 2244(b)(2). Of particular relevance is our decision in Grillette,
see 372 F.3d at 769–73, where we reviewed our precedents in light of the
clarification provided by the Supreme Court in Saffold. We first observed that
a state post-conviction application remains “pending”—thus tolling the one-
year period—“during the interval between a state trial court’s disposition of
the habeas application and the applicant’s ‘timely filing of a notice of appeal
(or petition for review) in the next court.’” Grillette, 372 F.3d at 770 (quoting
Saffold, 536 U.S. at 219) (emphasis added). The negative implication from this
rule is plain: if a prisoner fails to timely seek appellate review of the denial of
his post-conviction application, then his application is no longer “pending” and
ceases to have tolling effect for purposes of § 2244(d)(2). See id. at 771
(explaining that “a state [habeas] application ceases to be pending when the
time for appellate review expires”) (citing Saffold, 536 U.S. at 226).
      Grillette then explored the implications of this rule for Louisiana’s post-
conviction review scheme—which, as discussed, generally requires a prisoner
to seek supervisory review of the trial court’s decision within 30 days. See La.
Unif. Ct. App. Rule 4-3. Our court noted, for example, that if the trial court
“impliedly” extends the 30-day period for seeking review in response to a
prisoner’s motion, then the prisoner’s seeking a writ within the extended time
suffices to keep his post-conviction process “pending” under § 2244(d)(2). See
                                        9
    Case: 18-30374    Document: 00515418007        Page: 10   Date Filed: 05/15/2020



                                    No. 18-30374
Grillette, 372 F.3d at 771–73 (discussing Dixon, 316 F.3d at 556); see also
Dixon, 316 F.3d at 555 (explaining that “Louisiana courts consider the trial
court’s setting of a return date later than thirty days to be an implicit extension
. . . in accordance with Rule 4-3) (citing Brock, 521 So.2d at 1162). Our court
applied that principle in Grillette, finding that the trial court agreed to set a
return date far longer than the usual 30-day period, even when the prisoner
merely gave “oral notice” of his intent to seek writs but did not move for an
extension. See 372 F.3d at 773–74. While that procedure may not have
complied with the letter of Rule 4-3, our court reasoned that Louisiana courts
would not “penalize” applicants who sought writs after the 30-day period in
reliance on the trial court’s later return date. See id. at 774–75 (discussing
Louisiana decisions). Our court also relied on the fact that the appellate court
“consider[ed] the merits” of the writ application and “at no point” suggested
the application was untimely. See id. at 775 (observing that, “when the denial
of an application is based on untimeliness, Louisiana courts routinely and
unmistakably indicate so in their opinions”) (and collecting decisions).
Consequently, we ruled that Grillette’s “[state] application was never in an
untimely status and remained ‘pending’” until ultimately denied by the
Louisiana Supreme Court, thus tolling the federal limitations period during all
the intervening time. Id. at 776.
      Rounding out our precedents is our decision in Melancon v. Kaylo, 259
F.3d 401 (5th Cir. 2001). See Grillette, 372 F.3d at 772 (discussing Melancon).
There, we concluded that a state post-conviction application “ceased to be
pending” because “at no time during [the 30-day period of Rule 4-3] had
Melancon given notice of his intent to seek a writ, asked the court to set a
return date, or requested an extension on the return date.” Id.; see Melancon,
259 F.3d at 407. Melancon, we pointed out, “did not give notice of his intent to
seek a writ until sometime well after Rule 4-3’s 30-day deadline had expired,”
                                        10
   Case: 18-30374    Document: 00515418007      Page: 11   Date Filed: 05/15/2020



                                 No. 18-30374
and only at that point did the trial court set a return date for seeking review.
Grillette, 372 F.3d at 772 (discussing Melancon). Furthermore, although the
appellate court did consider Melancon’s subsequent writ application on the
merits, it noted the application “‘appeared to be untimely’ because there was
no indication that any extension on the return date had been granted.” Id.
(quoting State v. Melancon, No. 98-K-1139 (La. Ct. App. 4th Cir. Aug. 13, 1998)
(unpublished)); see also Melancon, 259 F.3d at 403 (observing appellate court
“considered the merits” but “suggested that Melancon’s application was
untimely”).
      Applying these complex precedents to the present appeal yields the
result that Leonard’s PCR application was “never in an untimely status,”
Grillette, 372 F.3d at 772 (quotation marks omitted), until it was ultimately
denied by the Louisiana Supreme Court January 9, 2015. Like the applicants
in Grillette and Dixon, Leonard was granted an extension to file a supervisory
writ application beyond the normal 30-day period of Rule 4-3. It makes no
difference that Leonard’s extension came from the appellate court instead of
the trial court, because Rule 4-3 provides that either “the trial court or the
appellate court may extend the time for filing the [writ] application.” It also
makes no difference that Leonard never expressly asked for an extension:
neither did Grillette, but in that case we nonetheless found that the prisoner
benefited from the extended return date. See Grillette, 372 F.3d at 774
(rejecting argument that, “because Grillette, like Melancon, never requested an
extended return date, he could not have obtained an extension” under Rule 4-
3). Finally, Melancon does not compel a different result for several reasons.
Leonard received an extension of time to file beyond the 30-day period;
Melancon did not. Cf. Melancon, 259 F.3d at 407 (noting Melancon “failed to
obtain an extension”); see also Dixon, 316 F.3d at 556 (same). Leonard made a
filing within the original 30-day period, whereas Melancon filed nothing during
                                      11
   Case: 18-30374     Document: 00515418007      Page: 12   Date Filed: 05/15/2020



                                  No. 18-30374
that period. Cf. Melancon, 259 F.3d at 403 (noting Melancon’s writ application
was “approximately five months” late under Rule 4-3). In other words, unlike
Melancon, at the expiration of the original 30-day period Leonard had a
pending writ application which, although defective, still provided the basis for
the appellate court’s extension. Cf. Dixon, 316 F.3d at 556 (observing that, at
the end of the 30-day period in Melancon, “no supervisory writ application had
been filed”). Finally, unlike in Melancon, the appellate court here did not
suggest that Leonard’s writ application was untimely—which would have been
strange given the same court had earlier authorized Leonard’s extension. Cf.
Grillette, 372 F.3d at 772 (observing appellate court “noted that [Melancon’s]
writ application ‘appeared to be untimely’ because there was no indication that
any extension on the return date had been granted”) (citation omitted).
      It is not surprising that the magistrate judge and district judge could
arrive at a different result in finding that Leonard could not benefit from
statutory tolling. Our precedents from Melancon to Dixon to Grillette do not
chart the clearest path. The touchstone, however, must be the Supreme Court’s
teaching that a state post-conviction application remains “pending” within the
meaning of § 2244(d)(2) “as long as the ordinary state collateral review process
is ‘in continuance’”—that is, “until the application has achieved final resolution
through the State’s post-conviction procedures.” Saffold, 536 U.S. at 219–20.
Under that standard, we see no gaps in Leonard’s state post-conviction
process—in other words, the process remained “in continuance”—because
(1) Leonard received an extension of time within which to seek supervisory
review of the trial court’s denial of his PCR application, and (2) he filed his
supervisory writ application within that extended time. Consequently, at no
time was Leonard’s PCR application “in an untimely status,” like the
applications in Grillette and Dixon, and in contrast to the application in
Melancon. See Grillette, 372 F.3d at 722 (explaining that Melancon’s
                                       12
    Case: 18-30374        Document: 00515418007          Page: 13      Date Filed: 05/15/2020



                                        No. 18-30374
application was “in an untimely status” due to his failure to seek or obtain an
extension within the 30-day period). And Leonard’s application “achieved final
resolution” only when the Louisiana Supreme Court denied review January 9,
2015.
        In reaching a contrary conclusion, the district and magistrate judges
focused on the fact that Leonard’s first writ application to the appellate court
was not “properly filed” under Louisiana rules. That analysis, to be sure, is
often followed by federal district courts in Louisiana. 5 Circuit courts, however,
disagree over whether the “properly filed” inquiry under § 2244(d)(2) focuses
only on the initial habeas application or also on subsequent filings in the
habeas process. 6 For example, the Second Circuit reasons that, once it is
determined that the “initial [habeas] application was ‘properly filed,’ the
‘properly filed’ inquiry comes to an end.” Hizbullahankhamon v. Walker, 255
F.3d 65, 70 (2d Cir. 2001) (quoting § 2244(d)(2)). Further analysis would ask
only whether that initial application remained “pending.” Id. That approach
would seem to honor the text of § 2244(d)(2), which refers only to a single
habeas “application,” and not to multiple “applications” throughout the habeas
process. In one decision however, our court concluded that an untimely
supervisory review application to the Louisiana Supreme Court was not


        5 See, e.g., Staden v. Poret, 2019 WL 3022192, at *2 n.3 (M.D. La. July 10, 2019)
(collecting decisions focusing on whether supervisory writ applications are “properly filed”
for tolling purposes); George v. Cain, 2014 WL 535711, at *3 (W.D. La. Feb. 7, 2014) (same);
Mark v. Michael, 2008 WL 4365929, at *3 n.18 (E.D. La. Sept. 23, 2008) (same); but see Holton
v. Cain, 2014 WL 3189737, at *6–7 (M.D. La. July 8, 2014) (concluding initial PCR application
“remained ‘not only timely filed but never in an untimely status,’” where appeals court
dismissed flawed writ application but “implicitly” granted petitioner extra time to file proper
writ application) (quoting Dixon, 316 F.3d at 556).
        6 Compare Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001) (“properly
filed” inquiry under § 2244(d)(2) applies only to “the initial [state habeas] application”), with
Wright v. Norris, 299 F.3d 926, 928 (8th Cir. 2002) (inquiring whether untimely motion for
appeal to Arkansas Supreme Court to review denial of habeas application was “properly filed”
under § 2244(d)(2)).
                                              13
   Case: 18-30374     Document: 00515418007      Page: 14   Date Filed: 05/15/2020



                                  No. 18-30374
“properly filed” under § 2244(d)(2). Williams v. Cain, 217 F.3d 303, 306–09 (5th
Cir. 2000). Williams, however, was decided before the Supreme Court in
Safford “clarified” the operation of § 2244(d)(2) in the state habeas context. See
Grillette, 372 F.3d at 769.
      We need not decide in this case whether the reasoning in Williams was
affected by Saffold. As explained above, our post-Saffold precedents—
specifically, Grillette and Dixon—stand for the proposition that, if a prisoner
receives extra time to seek review of the denial of his initial habeas application
(and does so), then that application remains “pending” for purposes of
§ 2244(d)(2). That is what occurred here. It was thus immaterial that Leonard’s
first writ application to the appellate court was flawed, given that he received
an extension to file another writ and thereby continued his PCR process until
ultimate disposition by the Louisiana Supreme Court.
                                       ***
      In sum, we conclude that Leonard’s state PCR application remained
“pending” from February 10, 2011 (when it was filed in the trial court) until
January 9, 2015 (when it was finally denied by the Louisiana Supreme Court).
The application’s pendency was not interrupted by Leonard’s filing an
improper supervisory writ application—but only because the state appellate
court simultaneously granted Leonard additional time to file a proper writ
application, which he did. Therefore, all of the intervening time between
February 10, 2011 and January 9, 2015 “shall not be counted” toward the
running of the one-year limitations period in § 2244(d)(1). See § 2244(d)(2).
When Leonard filed his state PCR application, 308 days had already elapsed
on his federal clock. When the clock began running again January 10, 2015,




                                       14
    Case: 18-30374       Document: 00515418007          Page: 15     Date Filed: 05/15/2020



                                       No. 18-30374
another 26 days elapsed before Leonard filed his federal habeas application
February 4, 2015. Leonard’s federal application was therefore timely. 7
       The district court’s judgment is VACATED and the case is REMANDED
for further proceedings consistent with this opinion.




       7 The magistrate judge reasoned that the statutory tolling issue need not be considered
because any tolling resulting from the extension of time would not have made Leonard’s
federal application timely. We disagree. As explained, the fact that the extension resulted in
keeping Leonard’s initial PCR application “pending” means that all of the time from its filing
in the trial court until its dismissal by the Louisiana Supreme Court is not counted towards
the one-year federal limitations period. See § 2244(d)(2). Not counting the period from
February 10, 2011 to January 9, 2015 means that only 334 days elapsed before Leonard filed
his federal petition, making it timely under § 2244(d)(1).
                                             15
