Filed: May 02, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 2, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-30479 Summary Calendar GLENN C. OSBORNE, Petitioner-Appellant, versus BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent-Appellee. Appeal from the United States District Court for the Western District of Louisiana USDC No. 00-CV-1338 Before GARWOOD, JOLLY and SMITH, Circuit Judges. PER CURIAM:* Glenn C. Osborne, Louisiana pri
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 2, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-30479 Summary Calendar GLENN C. OSBORNE, Petitioner-Appellant, versus BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent-Appellee. Appeal from the United States District Court for the Western District of Louisiana USDC No. 00-CV-1338 Before GARWOOD, JOLLY and SMITH, Circuit Judges. PER CURIAM:* Glenn C. Osborne, Louisiana pris..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 2, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-30479
Summary Calendar
GLENN C. OSBORNE,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA
STATE PENITENTIARY,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-CV-1338
Before GARWOOD, JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
Glenn C. Osborne, Louisiana prisoner # 130680, was convicted
after a jury trial of aggravated rape and was sentenced to life
imprisonment. He appeals the district court’s dismissal of his 28
U.S.C. § 2254 petition as time-barred. We granted a COA to
consider: (1) whether Osborne’s state submissions were “properly
*
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opinion should not be published and is not precedent except under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.
filed” as of the date they were received by the state court clerk;
(2) whether the limitations period should be equitably tolled for
the period between the receipt of the submissions and their filing;
and (3) whether equitable tolling should apply for the time by
which the August 23, 1999, return date set by the state district
court exceeded the thirty-day limitations period in Louisiana
Uniform Rules of the Courts of Appeal, 4-3.
Osborne contends that his state court submissions were
“properly filed” within the meaning of 28 U.S.C. § 2244(d)(2) at
the time they were stamped received by the state court clerk. An
application is “properly filed” when “its delivery and acceptance
are in compliance with the applicable laws and rules governing
filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). We assume,
arguendo, that Osborne has not shown that the receipt of his
documents met this standard.
Alternatively, Osborne asserts that the limitations period
should be equitably tolled for the eighty-three day difference
between the receipt of his state court submissions and their
filing. He contends that there was no reason for these delays and
that he had no control over the lapse of this time. Although the
magistrate judge who first examined the limitations issue
recognized that equitable tolling might apply during the period of
these delays, the district court did not specifically address this
aspect of Osborne’s equitable tolling arguments. Osborne
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diligently pursued his federal rights by filing his 28 U.S.C. §
2254 petition nineteen days after his state remedies were
exhausted. Given this diligence, the unusual length of the delays
between receipt and filing in state court (at least three weeks on
three occasions), Osborne’s assertion that his submissions were in
compliance with the procedural rules for filing, and the
respondent’s total failure to identify any deficiency in the
pleadings or other cause for the delays in filing, we find that
equitable tolling applies. See Phillips v. Donnelly, 216 F.3d 508,
511 (5th Cir.), reh’g granted in part,
223 F.3d 797 (5th Cir.
2000); Coleman v. Johnson,
184 F.3d 398, 402-03 (5th Cir. 1999).
Equitable tolling, for the periods between the submission and
filing of Osborne’s petitions in state court, alone however, is not
enough to render Osborne’s federal petition timely. Even with the
benefit of such tolling, Osborne’s federal petition is late by at
least four days. Osborne, therefore, points to an additional
twenty-three days that he maintains should not be counted against
his deadline for the filing of his section 2254 habeas petition.
Osborne’s second petition for state post-conviction relief was
denied by the state trial court on June 30, 1999. Under Rule 4-3
of the Louisiana Uniform Rules—Courts of Appeal, following the
denial of relief, the trial court must fix a reasonable time, not
to exceed thirty days, in which the applicant must file an
application for supervisory writs with the proper Louisiana
3
appellate court. Osborne ultimately filed his application with the
Louisiana Second Circuit on August 23, 1999—twenty-three days after
the expiration of the thirty-day period for seeking appellate
relief. Rule 4-3, however, also provides that “[u]pon proper
showing, the trial court or the appellate court may extend the time
for filing the application [beyond thirty days] upon the filing of
a motion for extension of return date by the applicant, filed
within the original or an extended return date period.” See
Uniform Rules—Courts of Appeal, Rule 4-3. Although Osborne did not
file his application until after the expiration of thirty days from
June 30, 1999, he did timely file a notice of intent to seek
appellate review and a request for the fixing of a return date in
the state trial court on July 19, 1999, and on July 22, 1999, the
state trial court set the return date for the filing of Osborne’s
application for Monday, August 23, 1999, the day on which Osborne
ultimately filed. The Louisiana Court of Appeal denied the
application for writ of review not because it was untimely but
because the underlying application for post-conviction relief was
untimely under La. Code Crim. P. art. 930.8. The Louisiana Supreme
Court similarly denied writ application on the same basis.
Accordingly, we hold that because Osborne within the thirty
day period timely sought and received an extension of the period
for filing his application for supervisory writs, the limitations
period was tolled pursuant to 28 U.S.C. § 2244(d)(2) from the
4
denial of his second state application for post-conviction relief
on June 30, 1999, until his application for supervisory writs was
filed on August 23, 1999. Dixon v. Cain, 316 F.3d 553, 555-56 (5th
Cir. 2003). In light of these additional tolling periods, we find
that not more than 347 days have passed from the time Osborne’s
state conviction became final and the date he filed his section
2254 petition.
Upon granting Osborne’s application for a COA, we concluded
not only that Osborne had established that the district court may
have erred in dismissing his petition as untimely, but also that
Osborne had established that “jurists of reason would find it
debatable whether [Osborne’s] petition states a valid claim of the
denial of a constitutional right.” See Slack v. Daniel, 120 S. Ct.
1595, 1599 (2000). The district court, however, having found
Osborne’s petition time-barred, did not address the merits of
Osborne’s constitutional claims or of the respondent’s claims of
allegedly independent and adequate state law grounds for denial of
relief (e.g., La. Code Crim. P., art. 930.8). Accordingly, we
VACATE the district court’s judgment dismissing Osborne’s petition
as time-barred, and REMAND for further proceedings, including a
determination by the district court of the validity of Osborne’s
underlying constitutional claims and respondent’s claims of
allegedly independent and adequate state grounds for denial of
relief.
5
VACATED and REMANDED
6
