Gaudet v. Cain ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30460
Summary Calendar
DALE GAUDET,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State
Penitentiary,
Respondent-Appellee.
__________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CV-2704-F
__________________________________________
January 18, 2002
Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Dale Gaudet, Louisiana prisoner #325242, was granted a certificate of
appealability by this court on the issue whether, in light of Melancon v. Kaylo1 and
Williams v. Cain,2 the district court should have applied equitable tolling. The trial
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
259 F.3d 401 (5th Cir. 2001)
2
217 F.3d 303 (5th Cir. 2000)
court found that Gaudet’s 28 U.S.C. § 2254 application was time-barred under the
Antiterrorism and Effective Death Penalty Act (AEDPA).
Gaudet contends that the AEDPA limitations period was tolled while his first
writ application to the state appellate court was pending because it was filed by the
return date set by the trial court. He maintains that the AEDPA limitations period
should be equitably tolled from the time his application for rehearing in his first writ
proceeding was denied on May 25, 1999, until the time the state supreme court
denied his writ application on November 17, 2000. He submits that he should not
be penalized for the time spent seeking a new writ, in his first state writ proceeding,
because the state appellate court actively misled him into believing that his remedy
after its denial of rehearing was to file a “new application.” He contends that the
AEDPA limitations period should be tolled between the denial of his application for
rehearing and the filing of his new state writ application because, during that time,
his second writ application was pending. He further insists that the district court
erred in finding that his new writ application to the appellate court in his first writ
proceeding was filed on November 4, 1999. Finally, he maintains that equitable
tolling of the AEDPA limitations period is warranted because he did not delay in
filing his federal habeas application.
Gaudet’s first state postconviction application, filed on April 24, 1997, tolled
the federal habeas limitations period for one day.3 That application ceased to be
pending on August 28, 1998, when Gaudet failed to file timely an application for
3
28 U.S.C. § 2244(d)(1)(A) and (d)(2); Emerson v. Johnson, 243 F.3d 931, 932 (5th Cir.
2001).
2
supervisory writs with the Louisiana Supreme Court from the August 28, 1998, writ
denial.4 Gaudet’s application for rehearing did not toll the AEDPA limitations
period.5 Upon the passage of one day after August 28, 1998, the date the appellate
court denied the first writ application, and March 26, 1999, the date the second writ
application was filed, Gaudet’s 28 U.S.C. § 2254 application filed on August 28,
2000 was untimely.
The record is manifest that Gaudet has not shown that he is entitled to
equitable tolling during the time in which his application for rehearing was pending.6
His motion for leave to file a supplemental brief is DENIED. The judgment
appealed is AFFIRMED.
4
LA. SUP. CT. RULE X, § 5(a); Williams v. Cain, 217 F.3d 303, 309 (5th Cir. 2000).
5
Id.; LA. UNIFORM R. CT. APP. 2-18.7; Y.F.B. v. R.D.R., 787 So. 2d 276 (La. 2001).
6
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
3