Filed: Apr. 26, 2006
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 FOR THE FIFTH CIRCUIT April 24, 2006 Charles R. Fulbruge III Clerk No. 05-70052 WILLIE MARCEL SHANNON, Petitioner-Appellant, versus DOUG DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. - Appeal from the United States District Court for the Southern District of Texas (4:02-CV-00819) - Before JONES, Chief Judge, WIENER and DeMOSS, Circuit Jud
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 24, 2006 Charles R. Fulbruge III Clerk No. 05-70052 WILLIE MARCEL SHANNON, Petitioner-Appellant, versus DOUG DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. - Appeal from the United States District Court for the Southern District of Texas (4:02-CV-00819) - Before JONES, Chief Judge, WIENER and DeMOSS, Circuit Judg..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-70052
WILLIE MARCEL SHANNON,
Petitioner-Appellant,
versus
DOUG DRETKE, Director, Texas Department
of Criminal Justice, Correctional
Institutions Division,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(4:02-CV-00819)
--------------------
Before JONES, Chief Judge, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Willie Marcel Shannon (“Shannon”) applies
for a certificate of appealability (COA) on the issue whether the
district court properly dismissed his federal habeas petition as
untimely. For the following reasons, we find that Shannon’s
application is without merit.
I. BACKGROUND AND PROCEEDINGS
In November 1993, Shannon was convicted and sentenced to death
for the carjacking and murder of Benjamin Garza. The Texas Court
*
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this opinion should not be published and is not precedent except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.
of Criminal Appeals affirmed on December 11, 1996. Shannon
declined to seek review in the United States Supreme Court within
90 days, so his conviction became final on April 29, 1997.2
Shannon filed his state application for post-conviction relief on
April 13, 1998, and the Texas Court of Criminal Appeals denied it
on September 12, 2001.
On March 1, 2002, Shannon filed for federal habeas relief.
The State moved the district court to deny Shannon’s petition as
untimely. In July 2005, the district court granted the State’s
motion to dismiss and denied Shannon a COA on its dismissal.
II. DISCUSSION
A. Standard of Review
When a petitioner seeks a COA for a district court’s dismissal
of his habeas petition on a procedural ground, such as time bar, he
must prove to us that reasonable jurists could debate whether the
district court’s procedural ruling was correct.3 In addition, he
must demonstrate that reasonable jurists could debate whether his
underlying petition states a valid claim of a denial of his
constitutional rights.4 In making the second determination, we
2
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 the prisoner declines to seek review in
the United States Supreme Court).
3
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
4
Id.
2
consider the district court pleadings, the record, and the
petitioner’s application for a COA.5 “If those materials are
unclear or incomplete,” we will resolve the issue in favor of the
petitioner.6
B. Applicable Law
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
contains a one-year limitations period for the filing of a federal
habeas petition.7 Thus, 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-conviction relief is pending.8 We
have recognized that the AEDPA limitations period is subject to
equitable tolling in “rare and exceptional circumstances.”9
C. Merits
Shannon concedes that he filed his federal habeas petition
after the AEDPA limitations period had expired. This is because
the limitations period began to run on April 29, 1997, when his
conviction became final. Not quite one year later, on April 13,
5
Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
6
Id.
7
28 U.S.C. § 2241(d).
8
Id. at § 2244(d)(2).
9
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
3
1998, Shannon filed for state post-conviction relief. Shannon’s
state petition stopped the AEDPA clock with 17 days remaining in
which he could timely file a federal habeas petition. When the
state court denied his petition on September 12, 2001, the AEDPA
limitations period began to run again. More than 150 days later,
Shannon filed his federal petition for post-conviction relief, long
after those remaining 17 days had passed. Shannon’s petition is
therefore untimely.
Shannon nevertheless contends that his petition is timely
because he is entitled to equitable tolling, citing to an Agreed
Order of Dismissal Without Prejudice in a class action case, Pyles
v. Dretke.10 In that case, the plaintiff class included Texas death
row inmates who had not filed for state post-conviction relief and
were affected by a new state statute specifying that state habeas
petitioners were entitled to appointed counsel for their post-
conviction proceedings. The plaintiff class and the State
stipulated in the Order of Dismissal that the time between a
prisoner’s request for state habeas counsel and the time counsel
was appointed would not count toward the calculation of the AEDPA
limitations period.
Here, the parties dispute whether the stipulation applies to
Shannon, but we conclude —— as did the district court —— that even
if it does, it is of no help to Shannon. He requested counsel for
10
No. 396-CV-2838-D (N.D. Tex. Dec. 2, 1996).
4
his state habeas proceedings, and counsel was appointed July 10,
1997. Assuming arguendo that the Pyles stipulation tolls the AEDPA
limitations period here, it would have enlarged the time in which
Shannon could file his federal application by only 72 days. As
Shannon’s petition was more than 150 days late, his petition was
still untimely, even with the putative benefit of the Pyles
stipulation.
Undeterred, Shannon urges that we equitably toll the
limitations period to permit the filing of his petition. He argues
that the State, in failing to inform him of the Pyles stipulation,
actively misled him as to the deadline for filing his habeas
petition and caused him to file his petition late. First, Shannon
raised this equitable tolling theory for the first time in a Rule
59(e) Motion to Alter or Amend the Judgment. A Rule 59(e) motion
“must ‘clearly establish either a manifest error of law or fact or
must present newly discovered evidence. These motions cannot be
used to raise arguments which could, and should, have been made
before the judgment issued. Moreover, they cannot be used to argue
a case under a new legal theory.’”11
Even if we were inclined to consider the substance of
Shannon’s argument, we would conclude that it is wholly without
merit. We have repeatedly noted that equitable remedies are not
11
Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005)
(quoting Simon v. United States,
891 F.2d 1154, 1159 (5th Cir.
1990)).
5
intended for those who sleep on their rights.12 Shannon complains
that the State’s allegedly misleading behavior induced him to file
his petition late. The circumstances of the proceedings below,
however, render Shannon’s assertion dubious at best. Assuming the
applicability of the Pyles stipulation, Shannon had approximately
70 days from his first appearance in federal court to file his
habeas petition, and approximately 40 days in which to do so after
appointment of federal habeas counsel. Shannon, however, did
nothing during that time.
Moreover, the district court’s scheduling order set a January
2, 2002 filing deadline for Shannon’s habeas petition, yet he did
not file his petition until March 1, 2002 —— almost 60 days after
his petition was due under the scheduling order and more than 150
days after his initial filing in federal court. We do not note
Shannon’s non-compliance with the scheduling order to imply that
filing by the deadline set in such an order necessarily insulates
a petitioner from AEDPA’s limitations period: It does not.13 We
mention it only as further evidence of his lack of vigilance in
pursuing his habeas petition. Considering the totality of the
circumstances, we are convinced that Shannon is not entitled to
equitable remedy.14 The district court’s denial of a COA is
12
See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999).
13
See Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002).
14
Because Shannon’s equitable tolling arguments are
groundless, we need not consider the State’s additional, and also
6
AFFIRMED.
potentially dispositive, points that (1) Shannon cannot urge
before this court arguments he raised for the first time in a
Rule 59 motion in the district court, and (2) Shannon failed to
comply with Slack because he has not asserted any constitutional
claims that could be debatable among reasonable jurists.
7
