Opinion
NO. 02-1286, SECTION "K" (5)
February 28, 2003
ORDER AND REASONS
Before the Court are Petitioner Hymel Varnado's timely objections to the Magistrate's Report and Recommendation of October 28, 2002. The Court finds merit in Varnado's objections and will recommit this matter to the Magistrate Judge for further consideration.
I. Standard of Review on a Magistrate's Report and Recommendation.
Magistrate judges are empowered by statute to preside over certain pretrial matters upon appointment by a district judge. 28 U.S.C. § 636(b)(1)(A); see also Rules Governing § 2254 Cases, Rule 10. A district court evaluating a magistrate judge's recommendation may adopt those portions of the recommendation to which no specific objection is made, as long as those sections are not clearly erroneous. See id.; Fed.R.Civ.P. 72(b). However, where a party makes "specific, written objections" within 10 days after being served with a copy of the magistrate's recommendations, the district court must undertake de novo review of those contested aspects of the report. 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b). The district judge may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b).
Here, the Magistrate Judge recommended that Varnado's 28 U.S.C. § 2254 habeas petition be dismissed as untimely. In light of Varnado's objections, the Court has independently reviewed the pertinent aspects of the record and finds as follows.
II. Facts and Procedural Background.
Petitioner Varnado is a state prisoner at the Louisiana State Penitentiary in Angola, Louisiana. On October 5, 1995, a grand jury in Orleans Parish indicted Varnado on twelve counts of aggravated kidnaping, twelve counts of armed robbery, eleven counts of aggravated crime against nature, twelve counts of aggravated rape, and three counts of attempted armed robbery. These counts arose in connection with twelve separate incidents and involved twelve different victims. Varnado pleaded not guilty to all charges.
The state trial court severed the counts and conducted three separate jury trials on November 18-19, 1996 ["Case I"]; January 28-29, 1997 ["Case II"]; and March 12, 1997 ["Case III"]. Each trial involved crimes committed against three different victims, and each of the numerous counts resulted in a verdict of guilty. Given the lifelong incarceration facing Varnado, the State elected not to prosecute him for the crimes committed against the remaining three victims. On April 18, 1997, Varnado was sentenced to four terms of life imprisonment plus 180 years.
(1) Direct Appeals.
Varnado pursued three separate direct appeals. His convictions were affirmed in each case, with one amendment not relevant here. See State v. Varnado, No. 97-1606, 739 So.2d 1026 (La.App. 4th Cir. 4/21/99) (table) [Case I]; State v. Varnado, No. 97-2823, 737 So.2d 240 (La.App. 4th Cir. 5/19/99) [Case II]; State v. Varnado, No. 97-2825, 753 So.2d 850 (La.App. 4th Cir. 9/22/99) [Case III].
Varnado then sought three writs of certiorari from the Louisiana Supreme Court. Two of his applications were denied without reasons. State v. Varnado, No. 99-1547, 751 So.2d 231 (La. 11/5/99) [Case I]; State v. Varnado, No. 1999-3187, 760 So.2d 341 (La. 4/20/00) [Case III]. A separate decision on the application in Case II was not forthcoming. On November 8, 2000, Varnado inquired by letter as to the status of this application. The Central Staff at the Louisiana Supreme Court responded by letter dated November 17, 2000: "Your writ did not slip through the proverbial crack. Records show that this Court considered all your claims from all three appeals when it denied your applications under two numbers."
Respondent has argued that the writ applications in Cases II and III were untimely. See Response to Habeas Corpus Petition, p. 4-5 (Doc. No. 5). This is incorrect. Under Louisiana Supreme Court Rule X, § 5, writ applications are due "within thirty days of the mailing of the notice of the original judgment of the court of appeal." § 5(a). However, "[a]n application properly mailed shall be deemed timely filed if mailed on or before the last day of the delay for filing." § 5(d). See also Uniform Rules, Louisiana Courts of Appeal, Rule 2-13 (employing same practice). Varnado's writ applications in the Louisiana Supreme Court bear the following postmarks: Case I: May 21, 1999 (30 days after Court of Appeal entered judgment); Case II: June 17, 1999 (29 days); Case III: October 21, 1999 (29 day's). Each application was timely.
Varnado's application in Case II was postmarked on June 17, 1999, was date-stamped by the Louisiana Supreme Court on July 12, 1999, and was docketed as No. 99-1547. It thus appears that Varnado's application in Case II was consolidated with his application in Case I.
Varnado did not seek review in the U.S. Supreme Court.
(2) Post-Conviction Proceedings in Case I.
On November 5, 2000, Varnado applied for post-conviction relief in Case I. The state trial court denied his pro se application on December 19, 2000, without assigning reasons. By motion dated January 2, 2001, Varnado asked the trial court to give written reasons for denying relief. On January 4, 2001, the trial court declined to issue written reasons. In a "Notice of Intent to Seek Writs," also dated January 2, Varnado expressed his intent to seek a writ of review in the Court of Appeal and asked that the trial court assign a time in which to apply for this writ. Although the clerk's office stamped it "Received — January 9, 2001," there is no indication that the trial court ever responded to this pleading.
Louisiana follows the "mailbox rule" in determining when a pro se application for postconviction relief is filed. State ex rel. Johnson v. Whitley, 648 So.2d 909 (La. 1995) (adopting Houston v. Lack, 487 U.S. 266 (1988)). A Louisiana prisoner's pro se application is deemed "filed" when he delivers it to prison authorities for forwarding to the court. Id. at 909. For purposes of this Order, the Court will treat the date shown on the certificate of service as the date of filing. See infra note 7.
On March 29, 2001, apparently with no filing deadline having been set, Varnado applied for a supervisory writ in the Court of Appeal. This application was denied on May 17, 2001. See Slip Op. No. 2001-0764 (La.App. 4th Cir. 5/17/01) (citing Deloch v. Whitley, 684 So.2d 349 (La. 1996) and dismissing Varnado's equal protection claim for failure to file a pretrial motion to quash; dismissing Varnado's ineffective assistance of counsel claim for failure to establish prejudice). On June 14, 2001, Varnado applied for a supervisory writ in the Louisiana Supreme Court. This application was denied on March 15, 2002. See State ex rel. Varnado v. State, No. 2001-1844, 811 So.2d 905 (La. 3/15/02) (citing Deloch v. Whitley, 684 So.2d 349 (La. 1996); Coe v. Bell, 161 F.3d 320, 352-55 (6th Cir. 1998)).
(3) Post-Conviction Proceedings in Case II.
Varnado submitted his application for post-conviction relief in Case II on March 29, 2001, which the trial court denied on April 18, 2001. On May 17, 2001, Varnado applied for a supervisory writ in the Court of Appeal. On July 2, 2001, that court denied the application as repetitive. See Slip Op. No. 2001-1003 (La.App. 4th Cir. 7/2/01) ("Relator's writ application raises the identical claims raised in writ 2001-K-0764, and therefore, is denied as repetitive. La. C. Cr. P. art. 930.4."). On July 23, 2001, Varnado applied for a supervisory writ in the Louisiana Supreme Court. This application was denied on March 22, 2002. See State ex rel. Varnado v. State, No. 2001-2316, 811 So.2d 925 (La. 3/22/02) (citing Deloch v. Whitley, 684 So.2d 349 (La. 1996); Coe v. Bell, 161 F.3d 320, 352-55 (6th Cir. 1998)).
(4) Post-Conviction Proceedings in Case III.
Varnado submitted his application for post-conviction relief in Case III on March 29, 2001, which the trial court denied on April 18, 2001. On May 17, 2001, Varnado gave the trial court notice of his intent to seek a writ of review in the Court of Appeal and asked that the court assign a filing deadline. On the same day, Varnado applied for a supervisory writ in the Court of Appeal. His application was denied on July 2, 2001. See Slip Op. No. 2001-1009 (La.App. 4th Cir. 7/2/01) (citing Deloch v. Whitley, 684 So.2d 349 (La. 1996) and dismissing Varnado's equal protection claim for failure to file a pretrial motion to quash; dismissing Varnado's ineffective assistance of counsel claim for failure to establish prejudice). On July 23, 2001, Varnado applied for a supervisory writ in the Louisiana Supreme Court. That court denied the application on March 28, 2002. See State ex rel. Varnado v. State, No. 2001-2367, 812 So.2d 656 (La. 3/28/02) (citing Deloch v. Whitley, 684 So.2d 349 (La. 1996); Coe v. Bell, 161 F.3d 320, 352-55 (6th Cir. 1998)).
Only two denials of post-conviction relief appears in the trial court's record: one on December 19, 2000 (Case I), and one on April 18, 2001. Because Varnado filed his applications in Case II and Case III on the same day and each application raised the same three claims, presumably the trial court denied them together in one order.
(5) Federal Habeas Petition.
Varnado deposited his pro se § 2254 petition in the prison mail system on April 11, 2002. His petition relates the facts and procedural history of Case I only, although, like his application for post-conviction relief in the state trial court, it mistakenly lists the date of conviction from Case II — January 29, 1997. Varnado raises six claims in his Case I petition:
The envelope containing Varnado's petition was postmarked April 11, 2002; this date also appears on the certificate of service. Cf. Spotville v. Cain, 149 F.3d 374, 376 (5th Cir. 1998) ([A] habeas corpus petition should be deemed filed when the petition is handed over to prison authorities for mailing.").
(1) La. C. Cr. P. art. 413C, upon which his indictment was obtained, was unconstitutional;
(2) the grand jury that indicted him was selected in a racially discriminatory and unconstitutional manner;
(3) he was denied the effective assistance of counsel when his attorney failed to move to quash the indictments returned by the grand jury;
(4) the trial court committed constitutional error by allowing the State to prosecute him in a single trial for crimes committed against three different victims;
(5) the prosecutor's suggestion to the jury that Varnado had the burden of conducting DNA testing violated due process; and
(6) the victims' testimony was, without more, constitutionally insufficient to support findings of guilt.
Varnado then mailed to the Court, on April 19, 2002, a "Motion for Leave to Amend, Consolidate, and Supplement Petition for Habeas Corpus" (Doc. No. 7), in which he sought permission to add Cases II and III to the federal habeas proceeding. Varnado stated that all three cases were "intricately intertwined" and asked that they be resolved together. Varnado's proffered "Supplemental Consolidated Petition" raises ten claims in all. The first three claims are identical to the first three in his original petition. Claims (4) through (10) are as follows —
— in Case II:
(4) the prosecutor's reference to Varnado's post-arrest silence violated the Fifth Amendment;
(5) the prosecutor improperly commented on the number of defense objections to the State's questioning of a certain witness;
(6) the prosecutor's suggestion to the jury that Varnado had the burden of conducting DNA testing violated due process;
(7) the prosecutor's implication that Varnado had stolen the vehicles used in the commission of the charged offenses violated due process;
(8) the sentences imposed were unconstitutionally excessive;
— and in Case III:
(9) various improper statements by the prosecutor during closing argument went uncured and violated due process;
(10) the victims' testimony was, without more, constitutionally insufficient to support findings of guilt.
In her Report and Recommendation of October 28, 2001 (Doc. No. 9), the Magistrate Judge recommended that Varnado's April 11, 2002, habeas petition be dismissed as time-barred. She found that Varnado's convictions in Case I became final on February 4, 2000, at which time the one-year limitation period for filing a federal habeas petition began to run. According to her calculations, this period was interrupted 290 days later when, on November 21, 2000, Varnado applied for post-conviction relief in the state trial court. Noting that Louisiana Court of Appeal Rule 4-3 generally gives an applicant who is denied relief in the trial court 30 days to apply for a writ in the Court of Appeal, she reasoned that Varnado had until January 18, 2001 — 30 days from the trial court's denial of relief — to apply for a supervisory writ. Because Varnado did not file a writ application within this 30-day window, she concluded that the federal limitation period began to run again on January 19, 2001, and continued to run for 69 days until March 29, 2001, when Varnado eventually filed a writ application in the Court of Appeal. She deemed the limitation period tolled from March 29, 2001, through the Court of Appeal's denial of relief on May 17, 2002, through Varnado's timely application to the Louisiana Supreme Court, all the way through March 15, 2002, when the Louisiana Supreme Court denied Varnado's writ application. The Magistrate stated that at least 26 untolled days elapsed between the Louisiana Supreme Court's denial of relief and Varnado's filing of a federal habeas petition on April 11, 2002. Combining the untolled periods (290 + 69 + 26 = 385), she concluded that Varnado's § 2254 petition came at least 20 days too late.
Given her recommendation that Varnado's petition be dismissed with prejudice, the Magistrate Judge denied as moot Varnado's Motion for Leave to Amend, Consolidate, and Supplement Petition for Habeas Corpus, which had been entered in the record only one day after the Magistrate signed her Report and Recommendation.
The Clerk's Office received Varnado's Motion for Leave to Amend on April 23, 2002, but did not enter it into the record until October 29, 2002. A handwritten notation on the back of the original petition reads: "Rec'd 4-23-02 Motion to Amend Petition, Not Filed, Awaiting IFP or fee." Another notation reads: "Apr. 30, 2002 — Fee pd. 4-29-01" [sic]. A handwritten notation on the back of the Motion for Leave to Amend reads: Orig. Missing — Treated as Original Filed 4/29/02. The Motion for Leave to Amend is also stamped: "Tendered for Filing — April 29, 2002."
Varnado objects. First, he maintains that his original petition in Case I was timely. Second, he asserts that his Motion for Leave to Amend is still pending and should have been addressed before the Magistrate issued her Report. Third (and in the alternative), he requests an evidentiary hearing.
III. Timeliness of the Federal Petition in Case I.
A state prisoner seeking federal habeas relief generally must file his petition within one year after his conviction becomes final. 28 U.S.C. § 2244 (d)(1)(A). However, this one-year period of limitation is tolled during those times when a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
The Louisiana Supreme Court, sitting in direct review, denied Varnado's writ application on November 5, 1999. Because Varnado did not petition the U.S. Supreme Court for a writ of certiorari, his convictions in Case I became final ninety days later — on February 3, 2000. See Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998); see also id. at 200-02 (applying Fed.R.Civ.P. 6(a)'s method of computing time to assess the timeliness of a habeas petition).
On November 5, 2000, with the federal limitation period having run 276 days, Varnado applied for post-conviction relief in the state trial court. See La. C. Cr. P. arts. 924-930.8. Varnado's application raised three claims: (1) La. C. Cr. P. art. 413C, upon which his indictment was obtained, was unconstitutional; (2) the grand jury that indicted him was selected in a racially discriminatory and unconstitutional manner; and (3) he was denied the effective assistance of counsel when his attorney failed to move to quash the indictments returned by the grand jury.
The Magistrate Judge found that Varnado's application was filed in the trial court on November 21, 2000. In keeping with State ex rel. Johnson v. Whitley, 648 So.2d 909 (La. 1995), and in the absence of a prison mail log, the Court will treat November 5, 2000 — the date shown on the certificate of service — as the date of filing. Whether Varnado's application was filed on November 5 or November 21 (or some date in between), the timeliness of the federal petition is not affected.
In a minute entry on December 19, 2000, the trial court denied the application without assigning reasons. On January 2, 2001, Varnado submitted a "Motion for Written Judgment," in which he asked the trial court to supply written reasons for its denial. Cf. State ex rel. Foy v. Criminal Dist. Court, 669 So.2d 393 (La. 1996). Also on January 2, 2001, Varnado submitted a "Notice of Intent to Seek Writs in the Louisiana Fourth Circuit Court of Appeals," which the clerk's office date-stamped on January 9. This Notice stated:
Uniform Rules, Louisiana Courts of Appeal, Rule 4-2 provides:
The party, or counsel of record, intending to apply to the Court of Appeal for a writ shall give to the opposing parties or opposing counsel of record, notice of such intention; notice simultaneously shall be given to the judge whose ruling is at issue, by requesting a return date to be set by the judge as provided by Rule 4-3.
Pursuant to Rule 4-2 of the Louisiana Uniform Rules-Courts of Appeal, notice is hereby given of the intention of Hymel Varnado, pro-se petitioner, to seek a writ of review in the Louisiana Fourth Circuit Court of Appeals, requesting review of the denial of his post conviction application.
Pursuant to Rule 4-3, affixed is an order for this Court to set the time for filing said writ application in the Louisiana Fourth Circuit Court of Appeals.
Attached to this Motion was a proposed Order:
PREMISES CONSIDERED, IT IS HEREBY ORDERED, that Hymel Varnado has until the ____ day of _____________, 2001, to apply for a writ of review in the Louisiana Fourth Circuit Court of Appeals.
Signed this ___ day of __________, 2001.
Leon A. Cannizzaro, Judge Criminal District Court, Orleans Parish
In a minute entry on January 4, 2001, the trial court denied Varnado's Motion for Written Judgment without comment. The court did not acknowledge Varnado's request for a return date, and did not set a time for filing a writ application in the Court of Appeal.
Uniform Rules, Louisiana Courts of Appeal, Rule 4-3 provides
The judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the appellate court. Unless the judge orders the ruling to be reduced to writing, the return date shall not exceed 30 days from the date of the ruling at issue. When the judge orders the ruling to be reduced to writing, the return date shall not exceed 30 days from the date the ruling is signed. In all cases, the judge shall set an explicit return date; an appellate court will not infer a return date from the record.
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 application for writs shall contain documentation of the return date and any extensions thereof; any application that does not contain this documentation may not be considered by the appellate court.
The record shows no further activity until March 29, 2001, when Varnado filed a writ application in the Court of Appeal. This application was denied on May 17, 2001. Slip Op. No. 2001-0764 (La.App. 4th Cir. 5/17/01). The Court of Appeal's judgment reads in its entirety:
Writ Denied.
In Deloch v. Whitley, 684 So.2d 349 (La. 1996), the court held that defense counsel's failure to file a pretrial motion to quash waived relator's equal protection claim arising out of allegedly discriminatory selection of grand jury forepersons. No motion to quash was filed in the instant case; thus, the right to raise this claim was waived. Relator's claim of ineffective assistance of counsel has no merit. He failed to establish prejudice.
On June 14, 2001, Varnado applied for a supervisory or remedial writ in the Louisiana Supreme Court. This application was denied on March 15, 2002. State ex rel. Varnado v. State, No. 2001-1844, 811 So.2d 905 (La. 3/15/02). The Louisiana Supreme Court's judgment reads in its entirety:
Denied. See, e.g., State v. Deloch, 96-1901, p. 1 (La. 11/22/96), 684 So.2d 349; see also Coe v. Bell, 161 F.3d 320, 352-55 (6th Cir. 1998).
Twenty-seven days later, on April 11, 2002, Varnado filed his federal habeas petition.
A.
Varnado's November 5, 2000, application for post-conviction relief was "properly filed" in the trial court for purposes of 28 U.S.C. § 2244(d)(2) and therefore interrupted the running of the one-year federal limitation period. See generally Artuz v. Bennett, 531 U.S. 4, 8-9, 121 S.Ct. 361, 363-64 (2000); see also La. C. Cr. P. arts. 925, 926, 930.8A (rules governing venue, form of petition, and time for seeking post-conviction relief). This application was "pending" through the trial court's denial of relief on December 19, 2000, and remained pending until at least January 18, 2001, the date by which Varnado would have been required to file a writ application in the Court of Appeal had the trial court properly set a filing deadline. See Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 2138 (2002); accord Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001) ("We . . . hold that § 2244(d)(2) tolls the entire period allotted for timely state appellate review."). Thus, the one-year federal limitation period stopped running on November 5, 2000, and remained stopped until at least January 18, 2001.
B.
Before turning to the period between January 18 and March 29, 2001, the Court will briefly review the writ application process in Louisiana. A state prisoner whose application for post-conviction relief is denied at the trial court level may apply for a supervisory writ in the Louisiana Court of Appeal. La. C. Cr. P. art. 930.6A. The prisoner-relator must notify the trial court of his intent to seek a writ, and must ask the trial court to assign a "return date." See Uniform Rules, Louisiana Courts of Appeal, Rule 4-2. Once the prisoner requests a return date, the trial court "shall immediately set a reasonable return date within which the application shall be filed in the appellate court." Uniform Rules, Louisiana Courts of Appeal, Rule 4-3.
Ordinarily, a writ application should be filed in the Court of Appeal within 30 days of the trial court's adverse ruling. That is, both the relator's Notice of Intent and the return date chosen by the trial court should fall within this 30-day window:
Unless the judge orders the ruling to be reduced to writing, the return date shall not exceed 30 days from the date of the ruling at issue. When the judge orders the ruling to be reduced to writing, the return date shall not exceed 30 days from the date the ruling is signed.
Louisiana Courts of Appeal, Rule 4-3.
However, there are exceptions to the 30-day rule. Although Rule 4-3 generally requires that the return date not exceed 30 days from the ruling in question, the trial court may set a later return date, at least where the relator has timely informed the trial court of his intent to seek review by writ. Barnard v. Barnard, 675 So.2d 734, 734 (La. 1996). If, within 30 days of the trial court's judgment, the relator requests a return date, but the trial court then chooses a return date that falls more than 30 days after the judgment, the Court of Appeal will accept as timely a writ application filed within that additional time allotted by the trial court. Id. In this situation, the relator should not be penalized "since it was the trial court who violated Rule 4-3" by granting the relator more than 30 days from the underlying ruling in which to file a writ application. Id. See also Sizeler Hammond Square Ltd. Partnership v. City of Hammond, 827 So.2d 410 (La. 2002).
Rule 4-3 itself contemplates certain cases in which the Court of Appeal may consider a writ application filed more than 30 days after the trial court's denial of relief.
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.
Louisiana Courts of Appeal, Rule 4-3.
There is also an exception to the usual three-step procedure of first filing a notice of intent, and then obtaining a return date from the trial court, and finally filing the writ application. Where a party gives the trial court timely notice of its intent to seek a writ, generally that party may file a writ application in the Court of Appeal within 30 days of the adverse ruling, without waiting for the trial court to set a return date. Rambo v. Willis-Knighton Bossier Health Center, 766 So.2d 1262 (La. 2000). According to the Rambo court: "Relator orally requested writs and the trial court granted the request but did not fix the return date. Because the trial court could have fixed the return date up to thirty days from the date of the ruling at issue under URCA Rule 4-3, relator's filing the writ in the Court of Appeal within that limitation was timely." Id. at 1262-63.
In this case, Varnado fully complied with Rule 4-2. On January 2, 2001 — two weeks from the trial court's denial of relief — Varnado timely notified the trial court of his intent to file a writ application in the Court of Appeal, and asked the court "to set the time for filing said writ application." Once the trial court received Varnado's Notice of Intent and Proposed Order on January 9, the court was required to fix a return date "immediately." Rule 4-3. There is no indication that this ever occurred. On January 18, 2000, the normal 30-day window for filing a writ application closed. Nothing further happened until March 29, 2001, when Varnado filed a writ application in the Court of Appeal.
The question thus becomes, was there a "properly filed application for State postconviction . . . revew . . . pending" between January 18, 2001, and March 29, 2001? The answer lies somewhere between Melancon v. Kaylo, 259 F.3d 401 (5th Cir. 2001), and Dixon v. Cain, 316 F.3d 553 (5th Cir. 2003) (per curiam).
In Melancon, some five months elapsed from the trial court's denial of postconviction relief to Melancon's filing of a writ application in the Louisiana Court of Appeal. The trial court denied relief on December 9, 1997, but Melancon did not file a writ application in the Court of Appeal until May 8, 1998. Melancon, 259 F.3d at 404. Sometime well after Rule 4-3's 30-day window had closed, Melancon gave the trial court notice of his intent to seek a writ. See Dixon, 316 F.3d at 556. The trial court set a return date for May 8, 1998, and Melancon filed his pro se writ application on that date. Melancon, 259 F.3d at 404 n. 2. In its opinion, the Louisiana Court of Appeal noted that Melancon's writ application "appear[ed] to be untimely," but the court nevertheless disposed of Melancon's claim on the merits. Dixon, 316 F.3d at 556.
In assessing the timeliness of Melancon's federal habeas petition, the Fifth Circuit first held that the May 8 application to the Court of Appeal was 'properly filed' for purposes of § 2244(d)(2):
Louisiana Court of Appeal Rule 4-3 allows the Court of Appeal to consider an application that was not timely filed if there is a "showing that the delay in filing was not due to the applicant's fault." Because Rule 4-3 entitled the Court of Appeal to consider Melancon's application for a supervisory writ on the merits, and the Court of Appeal did consider Melancon's application on the merits, the May 8, 1998 application was "properly filed" in state court.Melancon, 259 F.3d at 405 (footnote and citations omitted).
Next, agreeing with her sister circuits, the court held that the one-year federal limitation period "is tolled during the intervals between the state court's denial of postconviction relief and the timely appeal from that denial." Id. at 406. See generally Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134 (2002).
Finally, the Fifth Circuit explained that Melancon's application for state relief ceased to be "pending" when Melancon failed to act within the 30-day window established by Rule 4-3.
At the point when the state limitations period expired, a petitioner is not entitled to further appellate review and, therefore, he has no application "pending" in state court. A state court's subsequent decision to allow review may toll the time relating directly to the application, but it does not change the fact that the application was not pending prior to the application. Thus, after the appeal period has lapsed, an application ceases to be pending but a subsequent properly filed application entitles the petitioner to additional tolling beginning at the time of the "proper" filing.Melancon, 259 F.3d at 407.
Accordingly, when the 30 days allotted by Rule 4-3 had passed and Melancon had not vet filed his writ application (or asked the trial court to set a return date), the federal limitation period began to run. That period continued to run until Melancon finally deposited a "properly filed" application in the Court of Appeal. These four untolled months rendered Melancon's § 2254 petition untimely, and the Fifth Circuit declined to apply equitable tolling because Melancon had inexplicably waited another four months after the state post-conviction proceedings had ended before filing his federal petition.
In Dixon v. Cain, 316 F.3d 553 (5th Cir. 2003) (per curiam), the court faced a different scenario. There, the state trial court denied Dixon's application for postconviction relief on August 12, 1999. A little over a week later, Dixon filed a notice of intent to seek review by writ, in which he asked the trial court to "set a reasonable time of not less than sixty (60) days from the filing of this notice for the writ application to be filed with the First Circuit Court of Appeal." Id. at 555. On August 26, the trial court set a filing deadline of October 29, 1999. Dixon filed his writ application in the Court of Appeal on October 20, 1999, clearly more than 30 days after the trial court's denial of relief, but well within the time allotted by the trial court. Thus, within 30 days of the trial court's denial of relief, Dixon had both requested and received an extension of the return date.
In accepting Dixon's federal habeas petition as timely, the Fifth Circuit recognized that the state trial court was free to extend the return date beyond 30 days where the prisoner had timely requested such an extension. See id. (citing Brock v. Duhe, 521 So.2d 1162, 1162 (La. 1988)). The Fifth Circuit wrote: "Because Dixon timely both sought and obtained an extension of the appeal period, his application to the Louisiana Court of Appeal was not only timely filed but was never in an untimely status, and his case is thus distinguished from Melancon." Id. at 556.
The Dixon court further distinguished Melancon:
We have reviewed the record and briefs in Melancon and there is nothing to indicate or suggest that the prisoner there ever, or ever during the thirty days next following the trial court's December 9, 1997, denial of relief, sought any extension or enlargement of the thirty day period provided in Rule 4-3 or filed any notice of intent to seek writs and/or any motion and order requesting a return date. Thus, in Melancon when the thirty days expired there was neither any order extending or fixing the return date to or at a time later than the thirty day period nor was there pending any undisposed of motion for any such relief and no supervisory writ application had been filed. Thus Melancon's writ application ceased to be pending at the expiration of the thirty days.Id. (emphasis added).
Like Melancon, Varnado failed to obtain either an original or an extended return date within 30 days of the trial court's denial of relief. Indeed, by all appearances, Varnado obtained no return date at all. However, there are key differences between this case and Melancon.
First, unlike Melancon, Varnado timely sought a return date. Varnado set the writ application process in motion by timely filing a "Notice of Intent to Seek Writs." That process broke down only when the trial court failed to respond to Varnado's notice. Arguably, Varnado should have re-urged his notice once it became clear the trial court was not adhering to Rule 4-3. Or, as he did in Cases II III, he might have simply filed his writ application immediately without waiting for the trial court to fix a return date. But there is nothing in Rule 4-3 that requires the relator to do this. Rather, it was the trial court's obligation to "immediately set a reasonable return date within which the application shall be filed in the appellate court."
Although the rules governing criminal appeals are inapplicable here because this case involves a writ application, it is worth noting that under La. C. Cr. P. art. 915A, "When a motion for an appeal has been timely made, the appeal shall not be affected by any fault or omission on the part of the trial court." See State v. Nine, 315 So.2d 667, 669-70 (La. 1975); State v. Kraft, 294 So.2d 219, 220-21 (La. 1974).
Second, the Court of Appeal did not fault Varnado for any failure to comply with Rule 4-3. Instead, the court rejected Varnado's equal protection claims because his attorney failed to file a pretrial motion to quash (an unrelated procedural default), and it rejected Varnado's ineffective assistance of counsel claim because Varnado failed to establish prejudice (a merit-based inquiry). The Fourth Circuit Court of Appeal normally declines to even consider writ applications that are not filed in accordance with Rule 4-3. See, e.g., Carter v. Rhea, 785 So.2d 1022 (La.App. 4th Cir. 2001); Levert v. St. Bernard Parish School Bd., 772 So.2d 236 (La.App. 4th Cir. 2000); Ross v. City of New Orleans, 694 So.2d 973 (La.App. 4th Cir. 1996). Indeed, Rule 4-3 prohibits the Court of Appeal from reviewing the merits of a writ application "not filed in the appellate court" by the original return date (or an extended return date), unless "the delay in filing was not due to the applicant's fault." Because the Court of Appeal considered Varnado's claims without the trial court ever having fixed or extended the return date, the appellate court must have, at least under the terms of Rule 4-3, determined that the delay between January 18 and March 29, 2001, "was not due to [Varnado's] fault."
Admittedly, the fact that a court reaches the merits of a prisoner's claim may not necessarily mean that the prisoner complied with the rules for filing. See Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 2141 (2002) ("A court will sometimes address the merits of a claim that it believes was presented in an untimely way: for instance, where the merits present no difficult issue; where the court wants to give a reviewing court alternative grounds for decision; or where the court wishes to show a prisoner (who may not have a lawyer) that it was not merely a procedural technicality that precluded him from obtaining relief."). However, even if the Court of Appeal were to overlook a violation of Rule 4-3 for these or other reasons, it seems the court would have at least noted any noncompliance with Rule 4-3, as it did in Melancon, and then offered a reason why it chose to "forgive" the untimely filing. This is especially so, given the mandatory language of Rule 4-3 ("An application not filed . . . within the time so fixed or extended shall not be considered . . .") (emphasis added).
Varnado did all that Rule 4-2 and Rule 4-3 required of him. His "Notice of Intent" and request for a return date were "properly filed" on January 2, 2001, and remained "pending" in the trial court through March 29, 2001, when the Court of Appeal accepted his writ application for filing and disposition on the merits. Accordingly, the § 2244(d)(1) limitation period remained suspended from January 18 to March 29, 2001.
C.
The time between March 29, 2001, and March 15, 2002, is likewise tolled. Varnado complied with the Court of Appeal's rules for writ applications; his application to the Court of Appeal was therefore "properly filed" for purposes of § 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4, 8-9, 121 S.Ct. 361, 363-64 (2000); cf. Melancon v. Kaylo, 259 F.3d 401, 405 (5th Cir. 2001). This application was pending through the Court of Appeal's denial of relief on May 17, 2001, and remained pending until Varnado timely sought a supervisory writ in the Louisiana Supreme Court on June 14, 2001. See Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 2138 (2002); see also Louisiana Supreme Court Rule X, §§ 2, 4, 5 (rules governing writ applications). Varnado's application to the Louisiana Supreme Court was denied on March 15, 2002, State ex rel. Varnado v. State, No. 2001-1844, 811 So.2d 905 (La. 3/15/02), thus bringing the state postconviction proceedings to a close. The federal limitation period then ran from March 15 until April 11, 2002, when Varnado properly deposited his federal petition in the prison mail system.
Because the Court of Appeal addressed Varnado's writ application on the merits, his application would have been deemed "properly filed" under Melancon even if it were "untimely." Melancon, 259 F.3d at 405 (citing Emerson v. Johnson, 243 F.3d 931, 934 (5th Cir. 2001)). The Seventh Circuit has interpreted Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134 (2002), to mean that a "'properly filed' application for collateral review in state court must satisfy the state's timeliness requirements." Brooks v. Walls, 301 F.3d 839, 841 (7th Cir. 2002). Compare Smith v. Ward, 209 F.3d 383 (5th Cir. 2000). Here, the Court need not address whether, in light of Saffold, an application "untimely" under state law might nevertheless be "properly filed" under § 2244(d)(2). Varnado's application, unlike Melancon's, was not untimely.
D.
Only 303 untolled days elapsed between February 3, 2000, the date on which Varnado's convictions became final, and April 11, 2002, the date on which he filed a § 2254 petition. That is, 276 days passed between February 3, 2000 (convictions final), and November 5, 2000 (initial application for post-conviction relief filed in the trial court). Another 27 days passed between March 15, 2002 (writ application denied by Louisiana Supreme Court), and April 11, 2002 (federal petition constructively filed). Varnado's petition in Case I was timely.
II. Petitioner's Motion to for Leave to Amend.
Varnado's proffered "Supplemental Consolidated Petition" raises claims from both Case II and Case III. He proposes to incorporate these claims into the existing Case I habeas proceeding. Before addressing his proposal, the Court must first determine, had Varnado presented these claims in two separate petitions, whether such petitions would have been timely.
A.
Varnado's convictions in Case III became final on July 19, 2000, ninety days after the Louisiana Supreme Court's denial of certiorari on April 20, 2000. State v. Varnado, No. 1999-3187, 760 So.2d 341 (La. 4/20/00). The federal limitation period ran for 253 days, until Varnado timely applied for post-conviction relief in the state trial court on March 29, 2001. The trial court denied relief on April 18, 2001, and 29 days later, on May 17, 2001 (within the 30-day window provided by Rule 4-3), Varnado timely applied for a supervisory writ in the Court of Appeal. Also on May 17, he submitted a Notice of "Intent to Seek Writs" to the trial court. The Court of Appeal accepted the writ application for consideration even though the trial court had not had an opportunity to set a filing deadline. Cf. Rambo v. Willis-Knighton Bossier Health Center, 766 So.2d 1262 (La. 2000). The Court of Appeal denied relief on July 2, 2001, for the same reasons it had denied relief in Case I. Slip Op. No. 2001-1009 (La.App. 4th Cir. 7/2/01). Twenty-one days later, on July 23, 2001, Varnado timely applied for a supervisory writ in the Louisiana Supreme Court. That court denied his application on March 28, 2002, citing the same cases it had cited in its Case I denial. See State ex rel. Varnado v. State, No. 2001-2367, 812 So.2d 656 (La. 3/28/02) (citing Deloch v. Whitley, 684 So.2d 349 (La. 1996); Coe v. Bell, 161 F.3d 320, 352-55 (6th Cir. 1998)). Twenty-two days later, on April 19, 2002, Varnado properly mailed his Supplemental Consolidated Petition, containing his Case III claims, to this Court. Thus, only 275 untolled days elapsed between the date on which Varnado's Case III convictions became final and the date on which he filed his Supplemental Petition in federal court. If, instead of filing this Supplemental Petition, Varnado had filed a separate petition that raised only his Case III claims, such a petition would have been timely.
B.
The timeliness of Varnado's Case II claims presents some difficulty. Although Varnado submitted three direct review writ applications to the Louisiana Supreme Court, the court issued only two denials of certiorari. State v. Varnado, No. 99-1547, 751 So.2d 231 (La. 11/5/99) [Case I]; State v. Varnado, No. 1999-3187, 760 So.2d 341 (La. 4/20/00) [Case III].
The failure to issue an express denial in Case II is traceable to the court's docketing of the Case II writ application. When the clerk's office received Varnado's Case II application, it stamped that application with the same docket number it had previously assigned to the Case I application, perhaps assuming the two applications challenged the same convictions. See supra note 2. Unfortunately, the court's subsequent denials of certiorari did not reflect any consideration of the Case II application. Varnado wrote to the court on November 8, 2000, asking what had happened to the Case II application. The court's staff assured him by letter dated November 17, 2000, that "this Court considered all your claims from all three appeals when it denied your applications under two numbers."
Reading the court's denials in Cases I and III, Varnado had no way of knowing that his application in Case II had also been denied. Each denial referred to only one Court of Appeal docket number. Until November 17, 2000, there was no positive indication that the Louisiana Supreme Court had disposed of, or even reviewed, the Case II application.
The case law is understandably silent as to when a judgment becomes "final" for purposes of § 2244(d)(1)(A) where a state supreme court accepts and files a timely writ application but never issues an explicit order denying review. Had Varnado chosen to file a petition for writ of certiorari in the U.S. Supreme Court, such a petition would have been timely if filed "within 90 days after entry of the order [of the Louisiana Supreme Court] denying discretionary review." Rule 13.1, Rules of U.S. Supreme Court. Here, the Louisiana Supreme Court never entered an "order denying discretionary review" with respect to the convictions in Case II. The question still remains: when did Rule 13.1's 90-day period expire, thus rendering Varnado's Case II convictions final?
The Court need not decide when Varnado's Case II convictions became final within the meaning of § 2244(d)(1)(A), because this is one of those rare cases in which equitable tolling is appropriate. See Phillips v. Donnelly, 216 F.3d 508, 511 (per curiam), reh'g granted in part 223 F.3d 797 (5th Cir. 2000); Miller v. Collins, 305 F.3d 491, 495-96 (6th Cir. 2002); Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002); Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir. 2001); but see Drew v. Department of Corrections, 297 F.3d 1278, 1286-92 (11th Cir. 2002).
The Fifth Circuit has held that equitable tolling may apply to the period during which a diligent § 2254 petitioner fails to receive notice of the disposition of his state habeas application. Phillips, 216 F.3d at in. In Phillips, the state court denied the prisoner's request for habeas relief, but the prisoner claimed to have not received notice of the denial until some four months later. Once he did receive notice, however, the prisoner acted with "diligence and alacrity: he filed for an out-of-time appeal within three days of allegedly receiving notice of the denial. He then filed his federal habeas corpus appeal within one month of the denial of the out-of-time appeal." Thus, the Fifth Circuit concluded, "the delay in receiving notification . . . could qualify for equitable tolling," provided, of course, that the prisoner established on remand that he had in fact not received notice of the state court's denial of relief. Id.
Here, Varnado was reasonably diligent both in ascertaining the status of his direct review writ application and in seeking federal habeas relief. When the Louisiana Supreme Court denied his Case I writ application on November 5, 1999, Varnado had no reason to suspect that his Case II application had also been implicitly denied. He had earlier that year submitted his Case I application to the Louisiana Supreme Court about one month before he submitted his Case II application. Supra note 1. And, as of November 5, 1999, his Case III application was still pending, and it remained pending until April 20, 2000. Before writing to the Louisiana Supreme Court, Varnado consulted the West case reporters for some indication that the court had disposed of his Case II writ application.
Ideally, Varnado would have inquired about his Case II application sooner than he did, especially since the Louisiana Supreme Court issued denials in Cases I and III relatively promptly (within six months after Varnado mailed his respective writ applications). Cf. Rules of Supreme Court of Louisiana, pt. G, § 6.I.A. ("No more than 120 days should elapse, under normal and usual circumstances, between the filing and the grant or denial of any writ application."). But as the Sixth Circuit has noted in a similar case, "From a litigant's perspective, it is a difficult, if not impossible endeavor, to estimate how long a reviewing court will take to decide a particular motion." Miller v. Collins, 305 F.3d 491, 496 (6th Cir. 2002).
Varnado claims he first inquired about the case II application on May 30, 2000. Objs. to Mag. Rep., at 5 (Doc. No. 10). However, only two letters of inquiry appear in the record, one dated November 8, 2000, and a follow-up letter dated November 20, 2000.
Moreover, once he received the Louisiana Supreme Court's notice of November 17, 2000, Varnado acted promptly. Varnado allowed a total of only 70 "untolled" days to pass before he filed his Supplemental Petition in federal court. For purposes of illustration, if the Court treats November 17, 2000, as the date on which the Louisiana Supreme Court effectively denied the Case II writ application, Varnado's convictions in Case II would have became final on February 15, 2001. On March 29, 2001, forty-two days later, Varnado applied for post-conviction relief in the state trial court. The trial court denied relief on April 18, 2001, see supra note 4, and 29 days later, on May 17, 2001, Varnado applied for a supervisory writ in the Court of Appeal. Cf. Rambo v. Willis-Knighton Bossier Health Center, 766 So.2d 1262 (La. 2000). The Court of Appeal denied relief on July 2, 2001. Slip Op. No. 2001-1003 (La.App. 4th Cir. 7/2/01) (citing La. C. Cr. P. art. 930.4 and observing that Varnado had raised the same claims in his Case I application). Twenty-one days later, on July 23, 2001, Varnado applied for a supervisory writ in the Louisiana Supreme Court. That court denied his application on March 22, 2002, citing the same cases it had cited in its Case I denial of post-conviction relief. State ex rel. Varnado v. State, No. 2001-2367, 812 So.2d 656 (La. 3/28/02). Twenty-eight days later, on April 19, 2002, Varnado properly mailed his Supplemental Consolidated Petition, containing his Case II claims, to this Court.
Because the Court relies on equitable tolling and does not determine the date on which Varnado's Case 11 convictions became "final" under § 2244(d)(1)(A), the statutory tolling provision at § 2244(d)(2) is used only as a guide to illustrate Varnado's diligence in pursuing state post-conviction and federal habeas relief.
Given the Louisiana Supreme Court's failure to explicitly deny his Case II writ application, his reasonable response thereto, and his subsequent promptness in seeking state post-conviction and federal habeas relief, had Varnado elected to challenge his Case II convictions by filing a separate § 2254 petition on April 19, 2002, such a petition would have been timely.
C.
Having concluded that the claims in Varnado's "Supplemental Consolidated Petition" could have been presented in separate timely petitions, the Court will grant Varnado leave to amend. See Rules Governing § 2254 Cases, Rule 2(d); see also Advisory Committee Notes (stating that Rule 2(d) "permits, but does not require, an attack in a single petition on judgments based upon separate indictments or on separate counts even though sentences were imposed on separate days by the same court"). Three of Varnado's federal claims relate to pre-trial proceedings and are thus common to all three cases. The remaining claims, however, are case-specific, and are consolidated only in the sense that they may be considered in one federal habeas proceeding.
For the foregoing reasons,
IT IS ORDERED that Petitioner's Motion to Leave to Amend, Consolidate, and Supplement Petition for Habeas Corpus and Request to Exceed Page Limitation (Doc. No. 7) is GRANTED. IT IS FURTHER ORDERED that this matter is RECOMMITTED to the Magistrate Judge for further consideration.