### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-10690

CHARLES EDWARD MADDEN, Petitioner - Appellant
v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

Appeals from the United States District Court f or the Northern District of Texas

3:10-CV-1461

Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges. PER CURIAM: * Texas state inmate Char l e s Edward Madden appeals the di strict court’s dismissal with p rejudice of his 28 U

. S

. C

. § 2254 petition a s time-barred under 28 U.S.C. §§ 1 291 and 2253. Upon the conclusion of Ma d den’s direct c riminal proceedings, the state appellate court de l aye d m ore than eighteen months before issui n g the mandate, which prevented M adden from properly filing a state habeas petition a nd exhausting his state r emedies. This appeal presents two U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 3, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-10690 Document: 00512195689 Page: 1 Date Filed: 04/03/2013No. 11-10690

questions: (1) whether this delay was a state-created i mpediment to Madden’s filing a § 2254 petition, r equiring a l a t e r s t arting date for the one-year limitations period; and (2 ) whether this delay warrants equitable t olling of the limitations p e riod. For the reasons that follow, w e f ind that this delay neither constituted a state-created impediment, nor warranted equitable tolling. Accordingly, we affirm the district court’s judgment.

I. FACTS AND PROCEDURAL HISTORY C h arles Edward Madden, Texas prisoner # 1378410, was convicted by a jury of possession with intent t o d e l iver f our grams or more, but less than 200 grams, of methamphetamine. The trial court found that Madden h ad two prior felony convictions and sentenced him t o s e rve an enhanced sentence of sixty years in p rison. On direct appeal, Madden asserted that the district court erred in denying his motion t o suppress and in admitting evidence obtained during a traffic stop, but t h e C o u r t of Appeals for the Fifth District of Texas (“state appellate court”) affirmed the conviction, issuing the m andate in J anuary 2007. On October 12, 2007, Madden filed his first state h abeas application, which sought l eave to file a n out-of-time petition for discretionary review (“PDR”). The Texas Court of Criminal Appeals (“TCCA”) granted M ad d e n ’s

a p p l i c ation so that he c ould file a PDR, thereby reopening direct c rimina l proceedings. Madden filed the PDR on June 2, 2 0 0 8

. O n August 20, 2008, the TCCA refused the PDR, b ut the state appellate court did not issue the mandate. On September 1 8, 2008, Madden filed a second state habeas application. The T CCA dismissed this application o n O c t ober 8, 2008, having determined that Madden’s direct appeal was pending because the state appellate c ourt had not issued the mandate following the TCCA’s refusal of the PDR. Madden moved to compel the state appellate court to issue the mandate, and on January 13, 2010, filed his third state application. The state appellate court denied M a d d e n ’ s m otion to compel, but on March 10, 2010, it issued the

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mandate with respect to the refusal o f his PDR. On July 15, 2010, while his third state application was pending, Madden filed the instant § 2254 petition. Madden’s § 2254 petition raises the c l aims alleged in his t h ird state application, including ineffective a s s i stance of counsel a nd challenges to the jurisdiction of the trial court, the legality of th e search and seizure, and the jury instructions. Additionally, Madden requested a stay of the federal petition pending the resolution of his state habeas proceedings. Madden noted that the state appellate court had not i ssued the mandate after the reopening of his direct criminal proceedings, and that h e c o u l d not properly file his state application until the mandate issued. The magistr a t e j udge issued a report recommending that the § 2254 petition be dismissed a s u ntimely. T h e r e p o rt found that the state appellate court’s delay i n issuing the mandate did not affect the finality of Madden’s conviction for the purpose of determining when the o ne-year s t a t u t e of limitations u nder the Antiterrorism and Effective Death Pena l t y Act of 1996 (“AEDPA”) b e gan to run. The report also noted that, under § 2244(d)(1)(A), Madden’s conviction b ecame final n i n e t y days after the refusal o f his PDR, on N o v e mber 18, 2008, because he did not file a petition for writ of certio r a r i

. Accordingly, the repo r t c oncluded that Madden’s limitations period ran until November 18, 2009, about eight months before he filed his § 2254 petition. The magistrate judge also found that, under § 2244(d)(1)(B), the delay in issuing the mandate was not a state-created impediment to f iling a federal petition requiring a later starting date for the limitations pe riod. Noting that state-crea t e d impediments must p revent an applicant from filing a federal petition, the report stated that Madden kne w ab o u t the bar to filing a state application and could have filed a protective § 2254 petition and sought a stay while he exhausted his state remedies. The m agistrate judge c onclude d t hat because the delay did n ot prevent Madden f rom filing a p r o t e c tive federal

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petition, Madden did not show that the delay was a s t a te-created impediment requiring that the limitations period start to run from a later date. Finally, the magistrate judge found th a t Madden w as n ot e ntitled to equitable tolling. The report note d t h a t Madden faced “a dilemma between (1) waiting for a mandate to file a state habeas application, a nd (2) exhausting his claims in s tate court before the o ne-year limitations p e riod e xpired.” However, the report further noted that M a d d e n s h ould h ave k nown that the mandate issuance date did n ot affect the finality of his conviction for purposes of A EDPA t olling, and that Madden should have filed a p rotective § 2254 petition and sought a stay d e s p i t e h is inability to file a state application properly. The r eport also c oncluded that Madden did not s how diligence by focusing “on the s tate habeas process, seeking t o compel issuance o f a new mandate and assistance in filing a new state app l i c a t i on.” According to the report, though these actions may have been appropriate at first, at some point Madden should have elected to file a protective § 2254 petition. Madden objected to the repor t , a s s e rting that the state’s actions with respect to the mandate h ad l ed him to b elieve that his di r e c t appeal was still pending and that the o ne-year limitations period w ould n o t r un. The district

c ourt overruled the objections, adopted the m agistrate j udge’s report, an d dismissed Madden’s § 2 254 petition as u ntimely. Accordingly, the district court denied Madden’s m otion for a stay and abeyance o f his case and his request for appointment of counsel. The district court also denied Madden a certificate of appealability (“COA”) but granted him leave to proceed in forma pauperis. Madden timely appealed. 1We granted a COA on two issues: (1) whether Madden has demonstrated that the nearly nineteen-month de l ay in the state appellate court’s issuance o f the mandate after its ruling on the PDR was a

1 M ore p recis ely, M ad d en tim ely f iled a m otion f

or an extens ion of tim e to file a notice of ap p eal. This w as cons trued as a notice of ap p eal and forw ard ed to the dis trict court. 4 Case: 11-10690 Document: 00512195689 Page: 4 Date Filed: 04/03/2013No. 11-10690

state-created impediment; and (2) whether equitable tolling is appropriate, that is, whether Madden h as shown the requisite extraordinary circumstances and whether his conduct in the state court constituted the requisite due diligence. I I. STANDARD OF REVIEW The dismissal of a § 2254 petition as u ntimely is reviewed de novo. Krause v. Thaler , 637 F.3d 558, 560 (5th Cir. 2011). III. DISCUSSION A. Statute of Limitations AEDPA e stablishes a one-year statute of limitati o n s f o r state inmates seeking federal habeas corpus r e l i e f

. Se e 2 8 U.S.C. § 2244(d). In this case, the one-year period is c alculated from the l a t e s t o f ( 1 ) “the date on which the judgment became final by the conclusion of direct r eview or the expiration of the time for seeking such review”; or (2) “the d ate on which the impediment to filing

an application c reated by State action in violation of th e C o nstitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Id. § 2244(d)(1)(A)-(B). 1. Date Judgment Became Final Madden did not f

ile a p etition for w r i t o f certiorari after the August 20, 2008 refusal o f his out-of-time PDR. Thus, under § 2244(d)(1)(A), his conviction became f

inal ninety days later, on November 18, 2008. See Sup

. Ct. R. 13.1; Jimenez v. Quarterman , 5 55 U.S. 113, 1 21 (2009) (h o l ding that a conviction is not “final” until resolution of an out-of-time direct appeal); Roberts v. Cockrell , 319 F.3d 690, 693 (5th Cir. 2003) (stating that if a h abeas petitioner has pursued direct relief through the state’s highest court, his conviction becomes final when the ninety-day period for filing an application f or writ o f c e r t iorari with the Supreme Court expires). Contrary to Madden’s assertion, the mandate date does not determine the finality of his conviction for pur p o s es of § 2244(d)(1)(A). See Roberts , 319 F .3d at 694-95 (mandate date inapplicable in determining finality

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of conviction for purposes of o ne-year period). Because Madden’s § 2254 habeas petition was filed on July 15, 2010, more than one year a f t e r the limitations period began to run, it is facially untimely. 2 Madden’s federal petition would have been subject to statutory tolling if he had a properly filed state habeas petition pending in s t ate court during the

o n e - y e a r limitations period. 28 U .S.C. § 2244(d)(2). However, we find tha t statutory tolling does not apply because none of his state p etitions w as pending during the limitations period. Madden filed his September 2 008 p etition before the one-year period began t o r u n , 3 and his January 2010 p etition after it had expired. See Scott v. J

o hnson , 227 F.3d 260, 2 63 (5th C ir. 2000) (state application filed after federal li m i t a t i o ns period expired does not toll limitations period). Madden’s federal habeas petition, f i led approximately eight months after the one-year limitations period elapsed, is therefore untimely absent a state-created impediment or equitable tolling. 2. State-created Impediment Madden con t e n d s t h at the delay in the i ssuance of the m andate was a state-created impediment requiring a later s t a r ting date for the one-year limitations period. See 28 U.S.C. § 2244(d)(1)(B). To e stablish a state-created

2 M ad d en contend s that his PD R becam e f inal on Sep tem ber 12, 2008, which w as the

“ f i nal dis p os ition” as ind icated on the TCCA d ock et sheet. We dis agree. An ind ivi d u a l w h o elects to p etition f

or a writ of certiorari m us t d o so w ithi n n i n e t y d ays af ter a jud gm ent is entered by the s tate’s highes t court. Jud gm ent in M ad d en’s cas e w as entered on Augus t 20, 2008, so the N ovem ber 2008 d ate is the p rop er s tarting p oint f o r the lim itations p eriod

. See Sup

. C t. R

. 13. G iven that the one- year lim itations period began to run from N ovem ber 2008, M ad d en’s p etition, w hich w as m a i l e d o n D ecem ber 7, 2009, w as untim ely. See Ri cha rds v . Tha ler , N o. 11- 20803, 2013 WL 809246, a t * 3

- 5 (5th Cir. M ar. 5, 2013) (hold ing that und er Texas law the plead ings of p ro se inm ates are cons id ered f iled at the tim e they are d elivered t o p r i s on authorities , not at the tim e they are s tam p ed by the clerk of the court ( c i t i n g Ca m p bel l v . Sta te , 320 S. W. 3d 338, 343- 44 (Tex. Crim

. Ap p . 2010) ) )

.
3 In ad dition, M ad d en’s Sep tem ber 2008 p etition w as no t “p rop erly f iled” becaus e he
s ubm itted it bef

ore t h e m and ate is s ued

. See La rry v. D retke , 361 F. 3d 890, 893- 94 ( 5th Cir. 2004) (c i t ing Ex p a rte Johnson , 12 S. W. 3d 472, 473 (Tex. Crim

. Ap p . 2000) ) (f ind ing that, und er Texas law , a conviction is not f inal until the ap p ellate court is s ues its m and ate)

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impediment, “the prisoner must sho w t hat: (1) he w as prevented f rom filing a petition (2) by State action (3) in violati o n of the Constitution or f ederal law.” Egerton v. Cockrell , 334 F.3d 433, 436 (5t h C i r . 2 0 0 3). That is, Madden must show th at the delay actually prev e n t e d h i m from filing a § 2254 petition in violation of the Constitution or federal law. See i d. at 4 36-37; s ee also Kra u s e , 637 F.3d at 560-61 (holding that a petitioner “must also show that the [impediment] actually prevented him f rom timely filing his h abeas petition”) (emphasis in original). We find that he has not made the requisite showing. T h e state’s failure to issue the mandate erected a jurisdictional bar t o Madden’s filing a state application, see Larry , 3 61 F.3d at 894-95, but d i d not prevent him from filing a ti m e l y protective federal petition and seeking a stay of the one-year limitations period, see Gonzalez v. Thaler , 132 S. C t. 6 41, 655-56 (2012) (stating that a petitioner fa c i n g a lengthy delay i n the issuance of a mandate could file a protective federal petition and seek a stay); Pace v. DiGuglielmo , 544 U .S. 408, 416-17 (2005) (addressing when a prisoner s h o u ld file a p rotective petition t o prevent the limitations period from running); Rhines v. Weber , 544 U.S. 269, 278 (2005) (addressing the district court’s discretion to abate or stay f

e d e r a l h abeas actions pending resolution o f state habeas proceedings). Aware that the limitations period was running, a nd that he could not file a state application due to the absence o f a new mandate, Madden could have filed a protective federal habeas petition with a m otion to s t ay. C f. Williams

v. Thaler , 4 00 F ed. Appx. 8 86, 892 n.8 (5th Cir. 2010) (unpublished) (per curiam) (petitioner had n o reason to file protective federal petition because he continued to receive letter s f

r o m t h e TCCA assuring him that his state application was pending); Critchley v. Thaler , 586 F.3d 318, 321 (5th Cir. 2 0 0 9 ) (finding that petitioner could not have known to file a protective petition until he became

aware that his state petition had not been filed). Madd en’s eventual filing of a

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protective federa l p e t i t i o n and motion t o stay—the latter of which cited both Paceand Rhine—suggests that he was aware of this prophylactic option. In Critchley , the sta t e ’ s f a ilure to file petitioner C ritchley’s state habeas petitions constituted a state-created i m p e d iment under § 2244(d)(1)(B). Id. at 320. N oting the relationship between the filing of federal and s t ate habeas
pe t itions, we h eld that the state court’s failure t o file Critchley’s s tate habeas petitions p revented him from filing a federal peti t i o n . Id. at 320-21. The respondent i n Critchley acknowledged that a federal p e tition will fai l i f t he petitioner does not first e xh aust his claims i n state c ourt, but argued that C ri t chley could have filed a protective habeas petition a nd sought a stay p r i o r to exhausting his state claims. Id. at 320. Contrary to the respondent, we found t h at Critchley could not have “known to file [a protective] petition until h e became aware that his state application had not been filed.” Id. at 321. Through his correspondence with various state courts, Madden knew of the continuing impediment to filing his state application. In this important r e spect, Madden’s case is distinguishable from Critchley’s. See id. Moreover, this c ase is distinguishable from Egerton , where the petitioner

was unaware of the one-year li m i t a t i o ns period a nd had no access to legal materials until after the limitati o n s period had e xpired. 334 F.3d at 438-39 (holding that the inadequacy of the prison library, which did not include copies of AEDPA, was a state-created impediment under § 2244(d)(1)(B) ). As discussed, M a d d e n k new of the limitations period and the ongoing delay. He appears to have incorrectly assumed e ither that, absent the r e issuance of a mandate, he could not file a federa l h ab e a s petition, or that the issuance of a new mandate would e stablish the date of his conviction. Neither of t h e s e m i s takes entitles Madden to relie f

. F i r s t , in 2 003, we held that a state conviction becomes final when the time for s eeking direct review expires, regardless of when th e court of appeals issues its mandate. See Roberts , 319 F.3d at 694-95. Second, while

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Madden may have i ncorrectly assumed that h e was unable to file a p rotective habeas petition, he was n o t prevented by the s tate from doi n g s o , a n d his ignorance of the law is not equivalent to a state-created impediment. Given his inability t o exhaust state remedies, Madden c ould have filed a
p r o t e ctive § 2254 p etition a nd concurrently requested a stay. As Madden has failed to sho w t h a t h e was actually “prevented” from f iling a timely federal petition, he h as n ot shown that the state set forth an i m p ediment preventing him from filing a timely § 2254 petition. See Krause , 637 F.3d at 560-62. B. Equitable Tolling AEDPA’s o ne-year limitations period is subject to e quitable t o l l i ng in appropriate circumstances. Holland v . Florida , 130 S. C t

. 2549, 2562 (2 0 1 0 ); Davis v. Johnson , 158 F .3d 806, 8 11 (5th Cir. 1998). To be entitled to equitable to l l i n g , a petitioner must show “(1) that he h as been pursuing his rights diligently, and (2) that some extraordinary circumstance s tood in his way a n d prevented timely filing.” Lawrence v. F lorida , 549 U.S. 327, 336 ( 2 007) (quotation marks and c i t a t i on omitted). E quitable t olling 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.” Coleman

v. Johnson , 184 F

. 3 d 3 9 8 , 4 02 (5th Cir. 1999) (internal quotation marks and citation omitted), a brogated on other grounds by R ichards , 2013 WL 809246, at *3-5; see also Holland , 130 S

. Ct. at 2 562 (requiring a showing o f extraordinary circumstances preventing the timely filing of a f ederal petition). “Courts must consider the i ndividual facts and circumstanc e s of e ach case in determining whether equitable t o l l i n g is appropriate.” Mathis v. Thaler , 616 F.3d 461, 474 (5th Cir. 2010) (quotation marks and citation omitted). Adopting the m agistrate judge’s recommendation, the district court held that equitable tolling did not apply. For the reasons below, we agree.

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1. Misled or Prevented Madden argues that h e was misled by the dismissal of his s econd habeas petition on the grou n ds of a pending appeal, as he b elieved that the one-year limitations period had not yet begun t o r un. This contention is without merit. Madden received notice in late September or early October 2008 that his state habeas application could not be accepted because the mandate had not issued. At the time, the law in this circuit w as clear that the mandate date was not relevant for determining when a c onviction b ecame final f o r § 2 2 44(d)(1)(A)
purposes. See Roberts , 319 F.3d at 694-95. Indeed, M a dden’s comm u n i c a t i ons with the state court reflect t h a t h e was aware that the one-year limitations period had begun to run, as he requested that the state appellate c ourt issue the mandate so that h e c o u l d f i l e a state p e tition before the time to file a federal pet i t i o n h ad elapsed. His apparent confusion regarding the permissibility of filing a federal habeas petition prior to exhausting his state remedies does not

excuse his untimely filing and does not entitle him to e quitable tolling. Felder v. Johnson , 204 F.3d 168, 171-73 (5th Cir. 2000). Nor wa s M adden p revented i n an extraordinary way from a sserting his rights. The magistrate judge stated that Madden was faced with the “ dilemma” of either waiting for a m a n d a t e o r e xhausting his state remedies. Yet Madden could h ave resolv e d t h i s f alse dilemma by filing a protective federal petition while concurrently seeking a s t ay. We acknowledge that the delay itself was

u n u s u al, not o nly in light o f Texas Rules o f Appellate Procedure 18.1, whic h provides for the prompt issuance of mandat e s, but also in light o f Gonzalez , where the Supreme C o u r t noted that a delay greater than one year would be
rare, 132 S

. Ct. at 655. However, Madden’s inabil i t y t o compel the issuance of the mandate does not mean that he was prevented from filing a federal petition. While Madden may h av e been confused about when the limitations period commenced, neither his p ro se status nor his unfamiliarity with the law suffices

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as a basis for e quitable tolling. Turner v . Johnson , 1 77 F.3d 390, 392 (5th Cir. 1999) (holding that “neither a plaintiff’s unfamiliarity with the legal process nor his lack of representation during the applicable f iling period m erits equitable tolling”). Because Madden could h ave e lected t o file a protective federal petition and request a stay, we hold that he w as not prevented f rom asserting his rights, and that equitable tolling does not apply. 2. Diligence The record indicates that Madden’s efforts in seeking issuanc e o f the mandate were somewhat dilig e n t

. And “[t]he diligence required for equitable tolling purposes is reasonable diligence.” H olland , 130 S. Ct. at 2565 (internal quotation marks and citations omitted). However, we need not decide whether Madden’s actions m e t the diligence threshold, or whether a prisoner must file a protective petition to establish that he was acting with the requisite diligence, b e c a use Madden was not prevented from timely filing his federal petition. Se e Howland v. Quarterman , 5 07 F.3d 840, 846 (5th Cir. 2007) (declining to decide wh e t h e r filing a p rotective petition i s n ecessary to show due diligence), abrogated in part on other grounds by Richards , 2013 WL 809246, at *3-5. Given that Madden should have f i l e d a protective federal petition, his diligent communications reg a r d i n g issuance o f the state mandate alone do n ot entitle him to equitable tolling. 4 IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s judgment.

4 In H a rdy v . Q ua rterm a n we held that a p ris oner’s rep eated inquiries as to the s tatus of his s tate court p roceed ings m ay jus tif y equitable tolling. 577 F. 3d 596, 5 9 8

- 99 ( 5th Cir. 2009) ( dis cus s ing a p ris oner’s diligence in s ee k i n g inf orm ation on the exhaus tion of s tate rem ed ies )

. H ow ever, the f acts in H

a rdy are s im ilar to thos e in Cri tchley , ins of ar as the TCCA f ailed to notif

y the petitioner in H

a rdy of its d enial o f h i s s tate habeas p etition f or alm os t a year, and thereby p revented the p etitioner f rom learning that his lim itations period w as not being tolled

. Id. 11 Case: 11-10690 Document: 00512195689 Page: 11 Date Filed: 04/03/2013