Duplantis v. Booker ( 2001 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-60079
DAVID W. DUPLANTIS,
Petitioner-Appellant,
VERSUS
WALTER BOOKER, Superintendent; MIKE MOORE, Attorney General,
State of Mississippi
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
(4:97-CV-136)
August 1, 2001
Before SMITH, DUHÉ and WIENER, Circuit Judges.
PER CURIAM:1
David W. Duplantis (“Duplantis”) appeals the district court’s
dismissal of his petition for a writ of habeas corpus under 28
U.S.C. § 2254. We agree with the district court that Duplantis’s
petition is time-barred under 28 U.S.C. § 2244(d). Therefore, we
AFFIRM.
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this opinion should not be published and is not precedent except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.
BACKGROUND
Duplantis was convicted in Mississippi state court for felony
jail escape. On October 17, 1995, the Mississippi Court of Appeals
affirmed his conviction, and on December 29, 1995, it denied his
petition for a rehearing. On August 12, 1996, Duplantis filed a
motion for out-of-time writ of certiorari with the Mississippi
Supreme Court. The court denied that motion on November 13, 1996.
On March 14, 1997, Duplantis filed an application with the
supreme court for leave to file a petition for post-conviction
relief in the trial court. The court denied his application in an
order dated August 13, 1997 and filed on August 20, 1997.2
Duplantis filed his § 2254 petition in federal district court
on October 16, 1997. Respondents moved to dismiss the petition as
untimely, pursuant to 28 U.S.C. § 2244(d). The district court
adopted the magistrate’s report and recommendation that the
petition should be dismissed as time-barred. However, the court
granted Duplantis a certificate of appealability (“COA”).
DISCUSSION
Duplantis’s appeal involves only issues of law, therefore we
conduct a de novo review. Kiser v. Johnson, 163 F.3d 326, 327 (5th
2
Duplantis filed a request to withdraw his application as
incomplete on March 27, 1997, and he filed a new application on
April 17, 1997. The supreme court granted his request to withdraw
the first application in an order dated May 13, 1997, and filed May
23, 1997. However, by that time, Duplantis had filed his revised
application, so there was an application pending continually from
March 14, 1997 to August 20, 1997.
2
Cir. 1999). Under § 2244(d)(1)(A), a state prisoner has one year
from the date that his conviction became final by the conclusion of
direct review or by the expiration of the time for seeking such
review to file his § 2254 petition. However, a state prisoner
attacking a conviction or sentence that became final prior to April
24, 1996, the effective date of the Antiterrorism and Effective
Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214(1996)(“AEDPA”), has a one year grace period from that date to file
his petition (i.e., until April 24, 1997). See Flanagan v.
Johnson, 154 F.3d 196, 202 (5th Cir. 1998). Moreover, § 2244(d)(2)
provides that “[t]he time during which a properly filed application
for State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be counted”
toward the one year period of limitation.
The magistrate judge found that Duplantis had filed his § 2254
petition 540 days after the effective date of AEDPA. He then
determined that Duplantis’s applications for state post-conviction
relief tolled the limitations period for 159 days, the number of
days they were pending. However, the magistrate judge reasoned
that Duplantis’s motion for an out-of-time writ of certiorari was,
by its own terms, not “properly filed” under § 2244(d)(2), so it
did not toll the limitations period. He also stated that the
Respondents’ position that a writ of certiorari is a discretionary
part of the direct appeals process and not an application for post-
conviction relief was reasonable. Therefore, he concluded that
3
Duplantis’s § 2254 petition was filed sixteen days too late (540
minus 159 minus 365 (one year) = 16).
The district court adopted the magistrate’s recommendations,
but granted COA as to only the following designated issue: did
Duplantis’s filing of his motion for an out-of-time writ of
certiorari on August 12, 1996 constitute a “properly filed”
application which tolled the AEDPA limitations period? Although
this language is, admittedly, somewhat ambiguous, we read the COA
as restricting our review to the technical question whether the
motion was “properly filed” under § 2244(d)(2). Therefore, we do
not decide the issue raised by Respondents, that such a motion was
not a motion for “State post-conviction or other collateral
review.”
Our narrow construction of the COA is consistent with AEDPA’s
overall purpose to limit the opportunity for a state prisoner to
seek federal habeas review.3 In light of this purpose, Congress
restricted appellate review of the district courts’ disposition of
habeas petitions by enacting the COA requirement.4 Therefore, out
3
See Villegas v. Johnson, 184 F.3d 467, 470-71 (5th Cir. 1999)
(“AEDPA was an attempt on the part of Congress to ‘“reduce federal
intrusion into state criminal proceedings,”’ encourage claim
exhaustion, and accord greater deference to state court
adjudications.” (citations omitted)); Cantu-Tzin v. Johnson, 162
F.3d 295, 296 (5th Cir. 1998) (noting that the one year limit
contained in § 2244(d)(1) was an effort by Congress “to bring
regularity and finality to federal habeas proceedings.”).
4
See U.S. v. Rocha, 109 F.3d 225, 227 n.2 (5th Cir. 1997) (“The
COA requirement makes us a gatekeeper and is designed to prevent
judicial resources from being squandered by searching for the
4
of deference to the district court and in view of AEDPA, we should
construe our jurisdiction narrowly. Moreover, our construction is
a more reasonable interpretation of the COA. The district court
specifically highlighted the “properly filed” requirement when it
described the designated issue as whether Duplantis’s motion
“constituted a ‘properly filed’ application which tolled the AEDPA
statute.” Even Duplantis himself read the COA as we do, because
his initial brief was focused on whether his motion for out-of-time
writ of certiorari had been “properly filed.”
Having decided the scope of our jurisdiction in this appeal,
we proceed to the merits of the designated issue. In Artuz v.
Bennett, 531 U.S. 4, 8, 121 S. Ct. 361, 364, 148 L. Ed. 2d 213(2000), the Supreme Court held that an application for post-
conviction relief or other collateral review is “properly filed”
“when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings. These usually
prescribe, for example, . . . the time limits upon its delivery .
. . .” However, in Smith v. Ward, 209 F.3d 383, 384-85 (5th Cir.
2000), we held that an untimely application was nevertheless
“properly filed” in a Louisiana court, because the courts were
expressly empowered to accept late filings and consider whether the
applicant met certain statutory exceptions to the presumptive time
limit.
‘merits’ of meritless appeals.”)
5
Under Rule 17(b) of the Mississippi Rules of Appellate
Procedure, a petition for a writ of certiorari for review of a
decision of the court of appeals must be filed in the supreme court
within fourteen days from the date of entry of the appellate
court’s judgment on the petitioner’s motion for rehearing.
However, this period may be “extended upon motion filed within such
time.”
Duplantis did not file his motion for an out-of-time writ of
certiorari until over seven months after the court of appeals
denied his motion for rehearing. Therefore, he clearly did not
comply with Mississippi’s rules governing the time limits for
petitions for writs of certiorari. As a result, we hold that his
motion was not “properly filed” within the meaning of § 2244(d)(2).
Duplantis appears to argue in his reply brief, however, that
he had three years from the ruling on his direct appeal in which to
file his motion for out-of-time writ of certiorari, pursuant to §
99-39-5(2) of the Mississippi Code. That section governs motions
for post-conviction collateral relief by state prisoners, and does
not address time limitations for motions for certiorari. Duplantis
does not explain why the three-year statute of limitations in § 99-
39-5(2) ought to apply to motions for writs of certiorari instead
of the very specific rule contained in Rule 17(b). Therefore, we
reject his argument.
Based on the foregoing, the district court’s determination
that Duplantis’s motion for an out-of-time writ of certiorari was
6
not “properly filed” was correct. His § 2254 petition is time-
barred. We therefore AFFIRM.
AFFIRMED.
7