Davis v. Quarterman ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 27, 2009
No. 08-10495
Summary Calendar Charles R. Fulbruge III
Clerk
SAMUEL JOHN MAJOR DAVIS
Petitioner-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CV-203
Before REAVLEY, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
Samuel John Major Davis, Texas prisoner #1221760, is appealing the
district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as time barred.
Davis is seeking to challenge his conviction for sexual performance inducement
of a minor.
Davis argues that the district court erred in dismissing his petition as time
barred because his properly filed state postconviction application tolled the
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10495
limitation period, rendering his federal petition timely filed. He further
contends that equitable tolling should have applied because his application was
accepted for filing by the state court clerk, and it was addressed by the state trial
court.
Title 28 U.S.C.§ 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 any period of limitation.” An application is “filed” when delivered and
accepted by a court official. Artuz v. Bennett, 531 U.S. 4, 8 (2000). However, “an
application is ‘properly filed’ when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings.” Id.
At the time that Davis filed his state postconviction application in January
2006, T EX. R. A PP. P. 73.1 provided that the application must specify all grounds
for relief, and must set forth in summary fashion the facts supporting each
ground. The information must be provided on the form itself. Ex parte
Blacklock, 191 S.W.3d 718, 719 (Tex. Crim. App. 2006).
Davis did not summarily state the basis for his claims on the habeas
application form. Instead, he inserted forty typewritten pages stating his claims
in great detail. His application was clearly not filed in conformity with T EX. R.
A PP. P. 73.1. Because it was not a “properly filed” state application under
§ 2244(d), it did not toll the limitation period. Thus, Davis has not demonstrated
that the district court erred in not finding a basis for the statutory tolling of the
limitation period. Prieto v. Quarterman, 456 F.3d 511, 514 (5th Cir. 2006).
To the extent that Davis argues that the clerk and the Texas Court of
Criminal Appeals failed to comply with the state’s procedural rules in returning
his application, that issue does not raise a federal constitutional issue and
therefore is not cognizable on § 2254 review. See Estelle v. McGuire, 502 U.S. 62,
67-68 (1991).
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No. 08-10495
To establish an entitlement to equitable tolling, the petitioner must show
(1) that he pursued his habeas rights diligently and (2) some “‘extraordinary
circumstance’” prevented him from effecting a timely filing. Howland v.
Quarterman, 507 F.3d 840, 845 (5th Cir. 2007), cert. denied, 128 S. Ct. 2873
(2008). Long delays in receiving notice of state court action may warrant
equitable tolling. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified
on reh’g, 223 F.3d 797 (5th Cir. 2000).
However, the failure to pursue his legal rights with diligence was fatal to
Davis’ equitable tolling argument in its entirety. See Howland, 507 F.3d at 845.
Davis was advised of the defects in his state application, and he was given two
opportunities to correct the problem, one prior to the termination of the
limitation period, which would have resulted in the tolling of the limitation
period. Davis’ failure to comply with the state’s filing rules and his failure to
take corrective action upon receipt of notice of the problem while time remained
within the limitation period were the ultimate cause of his untimely filing. Such
circumstances do not warrant equitable tolling. See In re Wilson, 442 F.3d 872,
875 (5th Cir. 2006). The district court did not abuse its discretion in refusing to
apply the doctrine of equitable tolling. Larry v. Dretke, 361 F.3d 890, 897 (5th
Cir. 2004).
Because the petition was correctly dismissed on a procedural basis, it is
not necessary to review the merits of Davis’ habeas claims challenging his
conviction.
The dismissal of Davis’s § 2254 habeas petition as time barred is
AFFIRMED.
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