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Fifth Circuit Reiterates Diligence Under AEDPA Requires Consideration of Actions Both Before and After Filing of Habeas Petition

by Dale Chappell

The U.S. Court of Appeals for the Fifth Circuit held on August 2, 2019, that the failure of a state court to notify a petitioner that his state habeas petition was denied tolls the one-year clock for filing his federal habeas corpus petition, excusing an 18-month delay in filing, as long as the petitioner was diligent before and after the state filing.

How long should someone wait before badgering the court about whether it has ruled on his state habeas petition? What if the court was required to notify the person when it made its decision — yet failed to do so? Those were the questions that Willie Jackson asked the Fifth Circuit after Judge Jane Boyle of the U.S. District Court for the Northern District of Texas rejected his federal habeas corpus petition because he waited 18 months before filing it, even after the state admitted that Jackson was not notified of the state court’s decision denying his state habeas petition, which it was required to do.

A state prisoner has just one year (365 days, or 366 days in a leap year) to file his federal habeas petition after the date his state judgment has become “final,” under 28 U.S.C. § 2244(d)(1)(A). But the time that his state habeas petition is pending in state court is “tolled” or excluded from that time limit. This a firm rule that courts follow.

However, when a federal habeas petitioner can show that he has been diligently pursuing his rights and that some “extraordinary circumstance” stood in his way to prevent timely filing of his petition, the court may toll the clock for that period of delay caused by the obstacle. Holland v. Florida, 560 U.S. 631 (2010). This “equitable tolling” rule is not a bright-line rule, and courts must consider all the facts and circumstances of each case to determine whether equitable tolling applies.

Both the State and Jackson agree that he was not notified of the state court’s decision denying his habeas petition until 18 months after it was filed. The Fifth Circuit granted a certificate of appealability to determine whether Jackson was “diligent” in inquiring about the status of his state case.

The state court denied Jackson’s petition three months after he filed it in 2016, but he never got notice of the denial (the “white card”). Fifteen months after his petition was filed, he wrote the Texas Court of Criminal Appeals (TCCA) and asked for a status. Records show the court again sent notice of its denial, but he never received that notice, either. Another five month went by, and he wrote again asking for a status in December 2017. This time, he received the denial notice on January 5, 2018 — 20 months after he filed his state petition.

Just 17 days later, Jackson filed his federal habeas petition under 28 U.S.C. § 2254, raising several challenges to his 2014 conviction for aggravated robbery in Hunt County, Texas. Was Jackson diligent in waiting 15 months before asking for a status and again another five months to ask once more? The district court agreed with the State that he waited too long, citing a case where the petitioner was not diligent in contacting his lawyer for 15 months to find out the state court had denied his petition. The court promptly denied Jackson’s federal petition as untimely filed, and he appealed.

The Fifth Circuit disagreed with the district court. First, the Court reiterated that the U.S. Supreme Court has held that denying a prisoner’s first federal habeas petition is a “serious matter” because it “denies the petitioner the protections of the Great Writ entirely.” The Court found that the district court failed to “adequately account for Jackson’s diligence before and after the delay in receiving notice from the TCCA” in January 2018.

Jackson had filed his state petition just a month after his conviction was final, and then he filed his federal petition mere days after he was finally told his state petition had been denied. “The diligence required for equitable tolling is reasonable diligence, not maximum feasible diligence,” the Court said, quoting Holland. Accounting for the fact that Jackson never got TCCA’s denial notice, his actions before and after filing his state habeas petition showed he was diligent, the Court concluded.

The “state-created” delay in the court’s failure to notify him of its decision was not something to be held against Jackson, the Court said. Because he did inquire twice during the time TCCA was supposed to notify him added to his diligence, and the Court held that equitable tolling should have applied.

Therefore, the one-year statute of limitations under § 2244(d)(1)(A) should have been tolled from the April 2016 filing of Jackson’s state petition to January 2018 when he received notice of the denial. “Jackson easily filed his petition within the 365 days that § 2244(d)(a) affords,” the Court said.

Accordingly, the Court reversed the denial of Jackson’s petition and remanded for consideration of the merits of his claims. See: Jackson v. Davis, 933 F.3d 408 (5th Cir. 2019). 

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