Filed: Aug. 02, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 2, 2006 IN THE UNITED STATES COURT OF APPEALS July 18, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-70035 ARNOLD PRIETO, Petitioner-Appellant, versus NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. - Appeal from the United States District Court for the Western District of Texas (SA-01-CA-1145-OG) - Before JONES, Chief Judge, WIENE
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 2, 2006 IN THE UNITED STATES COURT OF APPEALS July 18, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-70035 ARNOLD PRIETO, Petitioner-Appellant, versus NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. - Appeal from the United States District Court for the Western District of Texas (SA-01-CA-1145-OG) - Before JONES, Chief Judge, WIENER..
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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 2, 2006
IN THE UNITED STATES COURT OF APPEALS July 18, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-70035
ARNOLD PRIETO,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, Director, Texas Department
of Criminal Justice, Correctional
Institutions Division,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
(SA-01-CA-1145-OG)
--------------------
Before JONES, Chief Judge, WIENER and DeMOSS, Circuit Judges.
WIENER, Circuit Judge:
Petitioner-Appellant Arnold Prieto appeals the district
court’s dismissal of his petition for post-conviction relief. For
the following reasons, we reverse the district court’s ruling that
Prieto’s petition was untimely, as well as the district court’s sua
sponte application of the procedural-default rule to Prieto’s jury-
misconduct claim. We therefore remand for further proceedings
consistent with this opinion.
I. BACKGROUND AND PROCEEDINGS
Prieto was convicted of murder and sentenced to death in March
1995. He appealed both his conviction and sentence, and on
December 16, 1998, the Texas Court of Criminal Appeals affirmed
both. Prieto declined to seek review from the United States
Supreme Court, and his conviction and sentence became final ninety
days later, on March 17, 1999.1
Prieto filed an application for state post-conviction relief
on October 8, 1999, asserting 66 grounds for relief. In July 2001,
the state court issued its findings of fact, conclusions of law,
and recommendation that Prieto’s application be denied. On
November 28, 2001, the Texas Court of Criminal Appeals denied
Prieto’s petition.
Prieto then sought habeas corpus relief in federal court. The
district court issued an order appointing counsel for Prieto and
setting filing deadlines. Under the court’s scheduling order,
Prieto’s habeas petition was due by May 3, 2002. On April 16
Prieto moved for, and the district court granted, an extension of
time to file his habeas petition. Under the district court’s
order, Prieto’s petition was due by September 6, 2002. On August
2, 2002, more than a month before that deadline, Prieto filed his
1
Foreman v. Dretke, 383 F.3d 336, 340 (5th Cir. 2004)
(Texas prisoner’s conviction is final for purposes of federal
habeas review 90 days after the Texas Court of Criminal Appeals
denies petition for review and defendant declines to seek review
in the United States Supreme Court).
2
habeas petition. The State responded with a motion to dismiss on
the ground that Prieto’s petition was untimely because he filed it
after the applicable limitations period expired.
Following extensive additional briefing, the district court
dismissed Prieto’s habeas petition as untimely. Ruling in the
alternative, the district court dismissed Prieto’s petition on
various substantive grounds. The court then granted Prieto a
certificate of appealability (“COA”) on two issues: First, whether
the court erred in dismissing Prieto’s petition as untimely; and
second, whether Prieto procedurally defaulted on his claim of jury
misconduct. The district court denied Prieto’s COAs on his other
claims, and we affirmed the district court’s decision to deny those
COAs in an unpublished opinion.
II. TIMELINESS
A. Statutory Tolling
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
provides a one-year limitations period for the filing of a federal
petition for post-conviction relief.2 Specifically, a petitioner
must file his petition within one year from the date that his
conviction becomes final. The one-year statute of limitations,
however, is not absolute. AEDPA provides that the limitations
period is tolled while a properly-filed application for state post-
2
28 U.S.C. § 2241(d).
3
conviction relief is pending.3 We review a district court’s
decision on statutory tolling de novo.4
As noted, Prieto’s conviction and sentence became final on
March 17, 1999. Prieto filed his state habeas petition 215 days
later, thus tolling the AEDPA limitations period. This tolling
ceased on November 28, 2001, when the Texas Court of Criminal
Appeals denied his application. At that time, Prieto had 150 days
remaining in which to file his federal habeas petition. Therefore,
to be timely, Prieto had until approximately the end of April 2002
to file for federal post-conviction relief. Instead, Prieto filed
his habeas petition almost 100 days late, on August 2, 2002. The
district court’s well-reasoned opinion addresses and properly
rejects Prieto’s claims that he is entitled to additional statutory
tolling. Accordingly, we adopt the district court’s opinion with
respect to statutory tolling.
B. Equitable Tolling
In addition to statutory tolling, we have recognized that the
AEDPA limitations period is subject to equitable tolling in “rare
and exceptional circumstances.”5 We review a district court’s
decision on equitable tolling for abuse of discretion, remaining
ever mindful, however, that “[w]e must be cautious not to apply the
3
Id. at § 2244(d)(2).
4
Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002).
5
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
4
statute of limitations too harshly.”6 Dismissing a habeas petition
is a “particularly serious matter.”7 This is why we look to the
facts and circumstances of each case to determine whether the
district court abused its discretion in declining to apply
equitable tolling.8
Although Prieto is not entitled to additional statutory
tolling, we conclude that his circumstances are sufficiently rare
and exceptional to warrant equitable tolling. In mid-April 2002,
Prieto filed a motion in the district court for an extension of
time to file his petition at a later date. The district court
granted Prieto’s motion, stating “[b]efore the Court is
Petitioner’s Motion for Extension of Time to [File] Writ of Habeas
Corpus. The Court finds that the motion is meritorious and it is
GRANTED. Petitioner’s writ of habeas corpus shall be filed no
later than September 6, 2002.” Under this order, Prieto’s petition
appears to have been due long after his time to file expired under
AEDPA. Although AEDPA applied to Prieto’s application, the
district court’s order granting him additional time for the express
purpose of filing his petition at a later date was crucially
misleading. Prieto relied on the district court’s order in good
faith and to his detriment when he filed his petition. As Prieto
6
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
7
Id.
8
Id.
5
submitted his petition within the time expressly allowed him by the
district court, he is entitled to equitable tolling.
This case is an almost perfect analog to Davis v. Johnson.9
Like Prieto, the petitioner in Davis was sentenced to death and,
like Prieto, moved for and was granted extensions of time that set
the deadline for filing his habeas petition beyond the AEDPA
limitations period.10 We recognized that a district court’s grant
of motions for extensions of time beyond AEDPA’s limitations period
is likely a “rare and exceptional circumstance[]” that justifies
equitable tolling.11 We therefore assumed without deciding that the
district court erred in declining to grant equitable tolling of the
AEDPA limitations period.12 A decision directly on the merits of
the issue was unnecessary because we then determined that Davis was
not entitled to a COA on any of his substantive claims.
On the facts of this case, Prieto is even more deserving of
equitable tolling than was Davis. Prieto was much more diligent in
securing his extension of time. Specifically, Prieto requested and
received his extension of time before the deadline to file his
habeas petition passed. In contrast, Davis failed to move for an
9
158 F.3d 806.
10
Id. at 808.
11
Id. at 808 n. 2, 811-12.
12
Id. at 808 n. 2.
6
extension of time until more than seven months after his petition
was due.13
In United States v. Patterson, we equitably tolled the
limitations period for a petitioner because he, too, relied on the
actions of the district court when he filed his habeas petition
after the AEDPA limitations period had expired.14 Specifically,
Patterson had moved the district court to dismiss his then-pending
petition so that he could obtain professional legal aid and re-
submit his case to the court.15 Ironically, the day that the court
granted Patterson’s motion to dismiss was the final day of the
AEDPA limitations period; after that date, any future filings were
untimely.16 As Patterson “relied to his detriment on the district
court’s granting of his [motion to dismiss]” we were “persuaded
that these circumstances are sufficiently rare and extraordinary to
warrant equitable tolling.”17
The government’s only response to Prieto’s contention that he
is entitled to equitable tolling on these facts is its discussion
of Fierro v. Cockrell.18 In Fierro, the district court issued a
13
Id. at 808.
14
211 F.3d 927 (5th Cir. 2000).
15
Id. at 931-32.
16
Id. at 932.
17
Id. at 931-32.
18
294 F.3d 674 (5th Cir. 2002).
7
scheduling order at the government’s request, and the order set the
deadline for Fierro’s habeas petition outside the AEDPA limitations
period.19 Thus, Fierro argued that the scheduling order induced him
to file late.20 The scheduling order, however, was issued three
weeks after the AEDPA limitations period expired.21 Accordingly,
we declined to apply equitable tolling because “the state’s request
and the district court’s order could not have contributed to
Fierro’s failure to comply with the one-year statute of
limitations.”22
The likelihood that a district court’s order will actually
mislead a petitioner into believing that his petition is due beyond
the AEDPA limitations period is the critical distinction between
Fierro and Patterson. There was evidence in Patterson that the
district court’s order led the petitioner to believe that the court
would entertain his petition at a later date, i.e., a date that was
necessarily beyond AEDPA’s limitations period. This is why, in
Fierro, we recognized the propriety of granting equitable tolling
when “the prisoner relied to his detriment on the district court’s
decision to dismiss for the express purpose of allowing later
19
Id. at 683.
20
Id.
21
Id.
22
Id. at 683-84.
8
refiling.”23 In contrast, there was no possibility that the Fierro
court’s scheduling order contributed to the petitioner’s tardiness
because that order was issued after the AEDPA deadline had already
expired.
Like Patterson, Prieto relied to his detriment on the district
court’s order issued for the express purpose of granting him
additional time to file his writ of habeas corpus. Significantly,
as quoted above, the district court’s order granting Prieto’s
motion stated: “Before the Court is Petitioner’s Motion for
Extension of Time to [File a] Writ of Habeas Corpus. The Court
finds that the motion is meritorious and it is GRANTED.
Petitioner’s writ of habeas corpus shall be filed no later than
September 6, 2002.” Orders such as these have the effect of
“unintentionally misl[eading] the prisoner,”24 and, considering the
totality of the circumstances, may warrant equitable tolling.
Accordingly, the State’s reliance on Fierro is misplaced. Indeed,
Fierro militates in favor of granting Prieto equitable tolling.
After careful consideration of the particular circumstances of
this case —— most importantly, the court-ordered extension of time
—— and a review of the record, we are persuaded that the district
court erred in not granting equitable tolling of the statute of
limitations. We therefore do not reach the alternative theory on
23
Id. at 682 (emphasis added).
24
Id.
9
which Prieto seeks equitable tolling, i.e. whether the State’s
appointment of a lawyer who was battling cancer at the time
warrants equitable remedy. As Prieto’s petition is not time-
barred, we must address the merits of the second issue on which the
district court issued a COA: Whether the district court properly
raised the issue of procedural default sua sponte to dispose of
Prieto’s jury-misconduct claim, never reaching the merits.
III. PROCEDURAL DEFAULT
A. Waiver
The State urges us to rule that Prieto waived the argument
that the district court erred in raising the affirmative defense of
procedural default sua sponte. This is because Prieto first
expressly addresses the sua sponte facet of the procedural default
issue in his reply brief and not in his initial brief. “Generally,
we will not consider an issue raised for the first time in a reply
brief.”25 This, however, is not the case before us.
In the light of all of the facts and circumstances, we view
Prieto’s initial brief as sufficiently presenting —— and thus
preserving —— the entire issue of procedural default, including,
without limitation, the lesser included question whether it was
improper for the district court to raise the affirmative defense of
procedural default sua sponte. Significantly, the district court’s
order granting Prieto a COA on the procedural default issue states,
25
U.S. v. Avants,
367 F.3d 433, 449 (5th Cir. 2004).
10
inter alia, “Petitioner is GRANTED a Certificate of Appealability
with regard to... whether this Court properly held... that
petitioner procedurally defaulted on his [jury-misconduct] claim.”26
Read plainly, the district court’s order expressly granted a COA on
its substantive application of the procedural-default rule to
Prieto’s jury misconduct claim. And Prieto fully briefed this
issue in his initial brief to us.
Looking beyond the district court’s order of certification to
its memorandum opinion reveals that a necessary component of the
procedural default issue in this case is whether the district court
properly raised that affirmative defense sua sponte. We cannot
address the substance of the district court’s procedural default
ruling without, at the same time, considering whether it was
properly raised in the first place —— these facets of the issue are
inextricably intertwined. In light of the language of the order
granting Prieto a COA and Prieto’s initial brief thoroughly
addressing the substantive aspect of the procedural default ruling,
the State’s attempt to parse the COA so narrowly to obtain a waiver
ruling from this court on the sua sponte sub-issue of procedural
default is inappropriate. We are satisfied that Prieto effectively
raised the entire procedural default issue, including the district
court’s raising it sua sponte, by addressing its substance in his
initial brief.
26
Emphasis added.
11
Moreover, even if Prieto’s initial brief did not raise the
procedural default issue in its entirety, we would still consider
his argument. This is because we have been loathe to default a
petitioner for a failure to brief when the terms of a COA are
arguably misleading.27 To repeat for emphasis, the order granting
the COA could lead one to conclude that only the court’s application
of the procedural default rule is at issue on appeal. In addition
to the language of the order granting Prieto a COA, there is the
section of the memorandum opinion applying procedural default, which
does not mention that the court raised the affirmative defense sua
sponte. Only when we read the end of the section of the memorandum
opinion that addresses Prieto’s various applications for COAs does
it become apparent that not only did the district court grant a COA
on the ground of procedural default, but that the COA thus granted
included the question whether the district court properly raised
procedural default sua sponte.28
27
Will. v. Cain,
217 F.3d 303, 305 (5th Cir. 2000)
(excusing a complete failure to brief a particular issue and
addressing it on the merits because the COA was arguably
misleading).
28
Furthermore, the State argues for the first time on
appeal that Prieto’s jury-misconduct claim is procedurally
barred. We have repeatedly held that “[t]he government must
invoke the procedural bar in the district court to raise it
here.” See United States v. Kallestad, 236 F.3d 225, 227 (5th
Cir. 2000); see also United States v. Drobny,
955 F.2d 990, 995
(5th Cir. 1992)(“To invoke the procedural bar...the government
must raise it in the district court”). Had the district court
not raised the affirmative defense for the State, the issue would
not even be before us. In this context, we reject the State’s
over-parsing of the district court’s COA so as to claim that
12
B. Merits
A district court may, in its discretion, raise the affirmative
defense of procedural default in habeas proceedings sua sponte.29
“We note, however, that though a court may invoke procedural default
sua sponte, it should not do so lightly.”30 Instead, our decision
should be “informed by those factors relevant to balancing the
federal interests in comity and judicial economy against the
petitioner’s substantial interest in justice.”31 Before raising the
affirmative defense sua sponte, the district court should consider
(1) whether the petitioner had notice that the district court was
going to raise the defense sua sponte and had an opportunity to
respond, and (2) “whether the state’s failure to raise the defense
is merely inadvertence or the result of a purposeful decision to
forgo the defense.”32
We have opted for a relatively flexible standard in this area
rather than a per se rule. And, the cases we have decided that deal
with this narrow issue have created a logical continuum that is
useful in the resolution of this case. First, we have never
Prieto waived the sua sponte facet of the procedural-bar issue.
29
Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998).
30
United States v. Willis, 273 F.3d 592, 597 (5th Cir.
2001).
31
Magouirk, 144 F.3d at 360.
32
Id.
13
approved of the sua sponte application of the procedural bar defense
when the petitioner has absolutely no notice or opportunity to
respond.33 Conversely, we have approved a district court’s decision
to raise the procedural default defense on its own motion when the
petitioner had notice that the court would consider doing so.34
Furthermore, we have been persuaded that the sua sponte
application of the procedural default rule is appropriate when the
record reveals that the State’s failure to assert the defense was
most likely the result of inadvertence.35 For example, we have
found that the State inadvertently failed to assert the defense when
the petitioner’s pleadings were so muddled that the State could not
have fairly anticipated that the petitioner was making a claim to
which the procedural bar applied.36 And, in that example, we
approved the court’s decision to raise procedural default sua
33
Johnson v. Cain, 215 F.3d 489, 493-95 (5th Cir. 2000);
Fisher v. Texas,
169 F.3d 295, 302 (5th Cir. 1999).
34
United States v. Willis, 273 F.3d 592, 597 (5th Cir.
2001) (the petitioner had notice by way of the magistrate judge’s
report and recommendation to the district judge, to which the
petitioner had ample time to respond and address the procedural
default defense);
Magouirk, 144 F.3d at 350, 360 (same).
35
Magouirk, 144 F.3d at 360 (finding that the State’s
failure to raise procedural default was the result of
inadvertence when the State’s argument rested on the petitioner’s
failure to exhaust his state remedies, but his remedies were
technically exhausted because he failed to raise them in state
court before they became time-barred).
36
Willis, 273 F.3d at 597.
14
sponte.37 When there is nothing before us but the State’s bald
assertion that its failure to assert the affirmative defense was
inadvertent, however, we have rejected the sua sponte application
of the procedural default rule.38
It is against this backdrop that we consider the propriety of
the district court’s decision to raise the affirmative defense of
procedural bar sua sponte and apply it to Prieto’s jury-misconduct
claim. Neither Prieto nor the State had notice that the district
court was going to consider procedural bar. Unlike Magouirk and
Willis, in this case there was no magistrate judge’s report and
recommendation to the district judge alerting the parties that
procedural default would be at issue. Under these circumstances,
it was an abuse of discretion for the district court to raise the
issue of procedural bar sua sponte. We therefore remand with
instructions to the district court (1) to address the issue of
procedural bar after giving Prieto and the State opportunities to
make their legal positions known to the court, then (2) if
appropriate, to address the merits of Prieto’s jury misconduct claim
for habeas relief.
REMANDED with instructions.
37
Id.
38
See Fisher, 169 F.3d at 302 (noting that the State
claimed that its failure to assert the defense was inadvertent,
but observing that even if it was, it was error to raise
procedural bar sua sponte because of strong concerns regarding
lack of notice).
15
16
