* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

May 2, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 w as 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 “properly2

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 exce e ded 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.” A rtuz 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 d ifference

between the receipt of his state court submissions an d 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 O sborne’s equitable tolling arguments. Osborne3

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 to tal failure to identify any deficiency in the

p leadings or other cause for the delays in filing, we find that

equitable tolling applies. S ee 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 Louisiana4

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.” S ee

Uniform Rules—Courts of Appeal, Rule 4-3. A lthough Osborne did not

file his application until after the expiration of thirty days from

June 30, 1999, he d id 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 Lou isiana 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 th e 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 the5

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. D ixon 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 applic ation 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

O sborne 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.” S ee Slack v. Daniel

, 120 S.Ct.

1595, 1599 (2000 ). T he district court, however, having found

Osborne’s petition time-barred, did not address the merits of

O sborne’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 th e district court of the validity of Osborne’s

underlying constitutional claims and respondent’s claims of

alleged ly independent and adequate state grounds for denial of

relief.6 VACATED and REMANDED