Case: 11-30794   Document: 00512299307    Page: 1   Date Filed: 07/08/2013




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

                                                                  FILED
                                                                  July 8, 2013
                                No. 11-30794
                                                                Lyle W. Cayce
                                                                     Clerk
SIVORIS SUTTON,

                                          Petitioner-Appellant,
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                          Respondent-Appellee.


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


Before STEWART, Chief Judge, and HIGGINBOTHAM and JONES, Circuit
Judges.
PER CURIAM:
      On July 19, 2011, the district court dismissed the habeas petition of
Petitioner-Appellant, Sivoris Sutton, as untimely under the one-year statute of
limitations prescribed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2244(d)(1). See No. 10-1240, 

(July 19,
2011 E.D. La.) (unpublished) (adopting magistrate’s report, 

(Mar. 17, 2011 E.D. La.) (unpublished)). The court entered final judgment
against Sutton on the same day. For the reasons provided herein, we AFFIRM.
                             I. BACKGROUND
A.    Facts and Proceedings Preceding Filing of the Instant Petition
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                                      No. 11-30794

       Sutton is a Louisiana state prisoner, who was convicted of two counts of
second-degree murder and is serving a life sentence without parole. He was
convicted on February 6, 1993. On January 31, 1996, the intermediate state
appellate court affirmed his convictions and sentence on direct appeal. At that
point, Sutton’s trial counsel (“Pastor”) withdrew from the representation.1
       Thereafter, Sutton proceeded pro se. He filed a joint petition for certiorari
to the La. Supreme Court with co-defendant Charlie Water. Water signed the
petition, but Sutton did not.
       The La. Supreme Court denied certiorari on June 7, 1996, in a one-word
order that simply stated “Denied.” See State v. Water, 

(La. June
7, 1996).      The La. Supreme Court only addressed Water in its denial of
certiorari. Sutton asserts that he did not discover this fact until 1999, upon his
retention of new counsel (“Harvey”).2
       On February 9, 1999, Sutton moved the La. Supreme Court for permission
to file an untimely petition for certiorari. The La. Supreme Court denied this
motion on June 4, 1999. Its one-paragraph order stated as follows:

            Motion to enroll as counsel and as counsel pro hac vice
            granted; motion to file out-of-time petition for writ of
            certiorari denied on the showing made. Even assuming
            that relator sought relief in [State v. Water, 

], because that application lacked merit . . . relator
            shows no grounds for relief.

State v. Sutton, 

(La. June 4, 1999). The record does not reflect
that Sutton sought certiorari from the U.S. Supreme Court on his direct appeal.




       1
       There was no impediment under Louisiana’s Rules of Professional Conduct to Pastor
withdrawing upon the intermediate state appellate court’s denial of Sutton’s direct appeal.
       2
           Harvey was admitted in Georgia and represented Sutton pro hac vice.

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                                      No. 11-30794

       On the same day that Sutton moved the La. Supreme Court for permission
to file the untimely petition on direct appeal, February 9, 1999, Sutton filed his
state habeas application. On July 21, 2008, the trial-level state habeas court
granted partial relief on Sutton’s underlying claim for ineffective assistance of
counsel (“IAC”) at trial.       However, the intermediate state appellate court
reversed the partial grant of relief. The La. Supreme Court denied Sutton’s
application for supervisory writ on February 26, 2010.
       At some point during this state habeas process, Harvey withdrew. Sutton
alleges that the Supreme Court of Georgia disciplined him for doing so.3
B.     Facts and Proceedings Following Filing of the Instant Petition
       Sutton filed the instant (federal) habeas petition on April 6, 2010,
pursuant to 28 U.S.C. § 2254. Respondent-Appellee, Burl Cain, responded that
the petition was untimely under the AEDPA. At that point, Sutton retained his
present habeas counsel (“Bartholomew”). Sutton made two arguments in reply.
       First:   Sutton argued that the La. Supreme Court had implicitly
adjudicated his February 9, 1999 motion, for permission to file an untimely
petition for certiorari, on the merits. Accordingly, Sutton submitted that his
conviction had not become “final” for purposes of AEDPA’s one-year statute of
limitations, 28 U.S.C. § 2244(d)(1)(a), until the La. Supreme Court denied his
motion on June 4, 1999. Since the AEDPA limitations period would have been
tolled regardless during the pendency of his state-level habeas proceedings, his
federal petition, thus, would have been timely filed. In support of this position,
Sutton analogized to the U.S. Supreme Court’s decision in Jimenez v.



       3
         Sutton devotes a significant proportion of his briefing to Harvey’s alleged “sudden
withdrawal” and subsequent disciplining by the Georgia Supreme Court. Indeed, Sutton
likens Harvey’s conduct to the attorney abandonment that the U.S. Supreme Court
admonished in Maples v. Thomas, ___ U.S. ___, 

, 922-27 (2012). However, as
discussed below, Harvey’s involvement occurred entirely after the one-year AEDPA limitations
period already had run. Therefore, it has no bearing on this appeal.

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                                        No. 11-30794

Quarterman, 

, 121 (2009). Sutton asserted underlying claims of (i)
actual innocence; (ii) IAC; and (iii) state misconduct.
       Second: Sutton also argued that he was entitled to equitable tolling. He
asserted the same underlying claims, with the addition of a claim of (iv) injustice
pertaining to the La. Supreme Court’s failure to address him in its June 7, 1996
denial of Water’s petition for certiorari, which Sutton had jointly filed with
Water but did not sign.4
       Upon the magistrate’s recommendation, the district court rejected both of
Sutton’s arguments. On July 19, 2011, the district court dismissed Sutton’s
petition with prejudice as untimely and entered final judgment against Sutton.
On July 21, 2011, the district court denied a certificate of appealability (“COA”).
       Sutton timely appealed the denial of a COA. We granted a COA on May
11, 2012.
                             II. STANDARD OF REVIEW
       “An order dismissing a habeas application as time-barred by AEDPA is
subject to de novo review.” Ginsberg v. Cockrell, 

, 270 (5th Cir.
2002) (per curiam) (citation omitted).              A district court’s denial of AEDPA
equitable tolling is reviewed for abuse of discretion. See Henderson v. Thaler,

, 779 (5th Cir. 2010) (citations omitted).
                                    III. DISCUSSION
       Sutton raises two issues on appeal:

           (A) In the event the AEDPA’s one-year limitations period
           had run at the time Sutton filed his state habeas




       4
         We note that, at the time of the briefing in this appeal, it was an open question in this
Circuit from a categorical standpoint whether a claim of actual innocence even could be an
underlying basis for equitable tolling. Recently, in McQuiggin v. Perkins, the U.S. Supreme
Court answered that question in the affirmative. See No. 12-126, ___ U.S. ___, ___ S. Ct. ___,

(May 28, 2013).

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                                        No. 11-30794

           application and subsequent federal habeas petition,
           whether we should grant his request for equitable tolling.5

           (B) Whether the La. Supreme Court’s denial of Sutton’s
           motion to file an untimely petition for certiorari on direct
           appeal amounted to an adjudication on the merits, such
           that Sutton’s conviction did not become “final” for purposes
           of the AEDPA’s one-year limitations period until after that
           denial, thereby preserving the timeliness of Sutton’s
           eventual AEDPA petition.6

We address the equitable tolling issue first and the timeliness issue second.
A.     Issue One: Equitable Tolling
       While the parties dispute whether our COA certified the equitable tolling
issue, we pretermit a determination of that question. Assuming arguendo that
our COA certified this issue, Sutton nonetheless fails to satisfy the U.S. Supreme
Court’s test for equitable tolling.
       A petitioner requesting equitable tolling must show that (i) “he has been
pursuing his rights diligently”; and (ii) “some extraordinary circumstance stood
in his way.” Pace v. DiGuglielmo, 

, 418 (2005) (citation omitted).
Here, the La. Supreme Court denied the unsigned joint petition on June 7, 1996,
addressing only Water. Sutton did not seek clarification of that anomaly until




       5
          Categorically, Sutton may pursue equitable tolling because AEDPA’s limitations
period is not jurisdictional. See Holland v. Florida, ___ U.S. ___, 

, 2560-62
(2010).
       6
           AEDPA’s federal limitations period is tolled during the pendency of state habeas
proceedings below. To calculate when the limitations period has run, we aggregate the time
between (i) the date the petitioner’s conviction became “final” and the date the petitioner filed
his state habeas application; and (ii) the date the state habeas process concluded and the date
the petitioner filed his federal habeas petition. Here, if Sutton’s motion did not affect the
finality of his conviction, it otherwise became “final” fourteen days after the intermediate state
appellate court affirmed on direct appeal, on January 31, 1996. See La. Code Crim. Proc. art.
922. As such, the AEDPA’s one-year limitations period would have run well before Sutton
filed his state habeas application on February 9, 1999.

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1999, when he filed his February 9 motion. Accordingly, Sutton was not
“diligent” within the meaning of Pace.
      Nor has Sutton made the requisite showing of “extraordinary
circumstances.” “A petitioner’s failure to satisfy the statute of limitations must
result from external factors beyond his control; delays of the petitioner’s own
making do not qualify.” In re Wilson, 

, 875 (5th Cir. 2006) (per
curiam) (citation omitted). A “garden variety claim of excusable neglect, such as
a simple miscalculation that leads a lawyer to miss a filing deadline, does not
warrant equitable tolling.” 

(citations and internal
quotation marks omitted).
      “As a general rule, equitable tolling operates only in rare and exceptional
circumstances where it is necessary to preserve a plaintiff’s claims when strict
application of the statute of limitations would be inequitable.” Fierro v. Cockrell,

, 682 (5th Cir. 2002) (alteration, citations, and internal quotation
marks omitted). “Equitable tolling thus applies principally where the plaintiff
is actively misled by the defendant about the cause of action or is prevented in
some extraordinary way from asserting his rights.” 

quotation marks omitted). “As a consequence, neither excusable neglect nor
ignorance of the law is sufficient to justify equitable tolling.” 

quotation marks omitted).
      Here, the joint petition that Sutton failed to sign had only one signature
line, which Water’s signature occupied. Far from actively misleading Sutton, the
state here simply failed to anticipate Sutton’s unawareness of the need to file his
own petition. This need should have been clear to Sutton on account of the one
signature line on the form and, in any event, ignorance of the law is insufficient
to justify equitable tolling.     See 

no
“extraordinary circumstance” stood in the way of Sutton filing a timely federal
habeas petition.

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      For these reasons, we deny Sutton’s request for equitable tolling of the
AEDPA’s one-year limitations period. We need not reach the merits of the four
underlying bases of Sutton’s request.
B.    Issue Two: Timeliness
      Sutton argues that, on account of surplus language in the La. Supreme
Court’s denial of his motion to file an untimely petition for certiorari, our
decisions in Melancon v. Kaylo, 

(5th Cir. 2001), and Grillette v.
Warden, Winn Correctional Center, 

(5th Cir. 2004), compel us to
treat the denial as an adjudication on the merits, thereby preserving the
timeliness of his eventual AEDPA petition.         We are unpersuaded by this
argument.
      Melancon and Grillette are AEDPA statutory tolling cases that hinged on
the operation of Louisiana Courts of Appeal Rule 4-3. Rule 4-3 sets a thirty-day
deadline to appeal a denied state habeas application to an intermediate state
appellate court (i.e., to apply for a supervisory writ). Notwithstanding the
thirty-day deadline, the Rule expressly states that:

           Upon proper showing, the trial court or the appellate court
           may extend the time for filing the application upon the
           filing of a motion for extension of return date by the
           applicant, filed within the original or an extended return
           date period. An application not filed in the appellate court
           within the time so fixed or extended shall not be
           considered, in the absence of a showing that the delay in
           filing was not due to the applicant's fault.

The primary import of Melancon and Grillette, even though they arose in the 28
U.S.C. § 2244(d)(2) statutory tolling context, rather than in the § 2244(d)(1)
“finality” context, is that they provide guidance as to when an ambiguous state
court order amounted to a merits adjudication.
      1.      Melancon


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      In Melancon, a federal habeas petitioner had filed an application for
supervisory writ that was approximately five months 

.
Similar to here, the intermediate Louisiana appellate court ambiguously denied
the application as both untimely and as failing on the merits. 

appellate court stated both that the application “appeared to
be untimely” and that it would dispose of the case “on the merits.” See 

(citations omitted) (discussing Melancon).
      The petitioner subsequently filed a federal petition, which the district
court dismissed as time-barred under the AEDPA. 

04. We held that AEDPA’s statute of limitations had tolled during the literal
pendency of the state habeas process. Thus, the petitioner’s untimely filing of
his state application for supervisory writ did not automatically render his
subsequent federal petition untimely as well, in light of the intermediate
appellate court’s ambiguous order—which may have been on the merits. 

directly connected this logic to Rule 4-3, which would have granted the
intermediate court discretion to adjudicate the untimely application even if
otherwise time-barred. 

that the AEDPA limitations period had not tolled
during the approximately five months that the petitioner had waited to file his
application for supervisory writ (five months beyond the timely period for filing
such an application), even though the limitations period had subsequently tolled
upon issuance of the intermediate appellate’s court ambiguous order (and for the
remainder of the state habeas process). 

   Grillette
      Grillette came before us on a somewhat similar posture to Melancon.
However, unlike in Melancon, the intermediate Louisiana appellate court had
not expressly stated that the application “appeared to be untimely.” Grillette,



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                                   No. 

. It had done so only by implication and, otherwise, had disposed
of the application “on the merits” in its ambiguous order. 

we treated the state court’s ambiguous order as turning
on the merits by operation of Rule 4-3. However, unlike in Melancon, we
proceeded to treat the AEDPA limitations period as tolled during the period
before the petitioner had filed his putatively untimely application for supervisory
writ.
        We explained that express adjudication “‘on the merits’ is not by itself
conclusive proof” that an application’s denial had not turned on timeliness.

(citing Carey v. Saffold, 

, 225-26 (2002)
(explaining that there are legitimate reasons a state court might provide
alternative merits grounds for denying a clearly stale application, including to
show a pro se prisoner “that it was not merely a procedural technicality that
precluded him from obtaining relief”)). We added, however, that “when the
denial of an application is based on untimeliness, Louisiana courts routinely and
unmistakably indicate so in their opinions.” 

we distinguished Melancon because, in Grillette, the state court had
not used the express words “appeared to be untimely.”              Therefore, the
petitioner’s “application was never in an untimely status,” and the AEDPA
limitations period had tolled throughout the entire state habeas process.

. In our conclusion, we expressly cautioned that
Grillette was limited to “the particular and highly unusual circumstances
presented.” 

few years after Melancon and Grillette, the U.S. Supreme Court issued
its decision in Jimenez. In Jimenez, a state habeas court allowed an applicant
to file an untimely direct appeal after the applicant had successfully argued that
he had been denied the opportunity to file a pro se appellate brief to accompany

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                                   No. 11-30794

his exiting attorney’s Anders brief. 

; see also Anders
v. California, 

(1967). The applicant subsequently appealed, and his
conviction was affirmed. 

issue before the Supreme Court was
whether the applicant’s conviction had become “final,” for purposes of AEDPA’s
statute of limitations, at the time he had completed his first iteration of direct
review or at the time he had completed his second iteration of direct review. 

a “narrow decision,” grounded in the “plain language of § 2244(d)(1),”
the unanimous Court held that:

           [W]here a state court grants a criminal defendant the right
           to file an out-of-time direct appeal during state collateral
           review, but before the defendant has first sought federal
           habeas relief, his judgment is not yet “final” for purposes
           of § 2244(d)(1)(A). In such a case, “the date on which the
           judgment became final by the conclusion of direct review
           or the expiration of the time for seeking such review” must
           reflect the conclusion of the out-of-time direct appeal, or
           the expiration of the time for seeking review of that
           appeal.

noting that the “plain language of § 2244(d)(1)”
encompasses “AEDPA’s goal of promoting comity, finality, and federalism by
giving state courts the first opportunity to review the claim and to correct any
constitutional violation in the first instance” (alteration, citations, and internal
quotation marks omitted)).
      4.      Analysis
              a.    Melancon and Grillette
      Cain (Respondent-Appellee) argues that Melancon and Grillette are
distinguishable because they hinged on Rule 4-3, which governs the
intermediate Louisiana appellate courts. Here, by contrast, the court issuing the
ambiguous order was the La. Supreme Court. The corresponding La. Supreme



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                                  No. 11-30794

Court Rule succinctly states: “No extension of time . . . will be granted.” Rule
10, § 5(a).
      We agree with Cain that Rule 4-3 is inapplicable. Therefore, Grillette and
Melancon do not control because those cases treated the ambiguous state court
order as an adjudication on the merits largely (if not only) in light of Rule 4-3’s
allowance for discretion.
      Moreover, unlike the state court in Grillette, the La. Supreme Court here
expressly stated: “motion to file out-of-time petition for writ of certiorari denied
on the showing made.” 

(emphasis added). While the
La. Supreme Court proceeded to state that Sutton’s “application lacked merit,”

not dispositive in light of 

.
      For these reasons, the La. Supreme Court did not adjudicate Sutton’s
motion on its merits. Thus, even were Jimenez applicable, Sutton’s habeas
petition would not have been timely under the AEDPA.
                               IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the final judgment of the district
court, which dismissed Sutton’s habeas petition with prejudice as untimely
under the AEDPA.




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