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

No. 11-20803

KENNETH RICHARDS, Petitioner – Appellant
v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent – Appellee

Appeal from the United States District Court for the Southern District of Texas

Before JOLLY, GARZA, and OWEN, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Petitioner Kenneth Richards, a Texas state prisoner, exhausted his state remedies and m o v e d t o file a habeas corpus petition. The district court dismissed the application a s time-barred because it was filed after the one-year deadline under 28 U.S.C. § 2244 for filing a 28 U.S.C. § 2254 application expired. Richards appeal s , c o n t e n ding the district court erred b y d eeming the date the clerk o f the court stamped his state post-conviction petition as received to be the date he filed the petition. Richards alleges under Texas law the pleadings of p ro

se inmates, i ncluding petitions for state post-conviction relief, are deemed filed at the time they a r e d e l i v e r ed to prison authorities, not at the time they are 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 

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stamped by the clerk of the cour t

. R ichards also a sserts he i s entitled to equitable tolling. I n l i gh t of the Texas C ourt of Criminal Appeals holding in Campbell v. State , 320 S.W.3d 338, 339 (Tex. C r i m . App. 2010), applying the prison mailbox rule to criminal cases, we REVERSE and REMAND. I Richards was convicted of possessing a cell phone while an inmate of a correctional facilit y a nd sentenced to twenty-five y ears of incarceration. His d i r e c t appeal was unsuccessful, and on August 19, 2 009, the Texas C ourt o f Criminal Appeals declined r eview. Because Richa r d s d i d n ot petition the Supreme Court for certiorari his c onviction became final on November 17, 2009, at the end of the ninety-day period for filing a petition for certiorari. Richards sought state post-conviction relief, placing his petition in the prison m ail system

on October 12, 2010. On November 18, 2010, 37 d ays later, it was stamped received by the Texas Court of C riminal Appeals. The court denied relief on January 19, 2011. On February 11, 2011, Richards m ailed his § 2 254 applicat i o n to the federal district court. Thaler moved for summary judgment alleging that t he application was untimely. Richards opposed the motion. The parties disputed whether Richards filed his state p ost-conviction petition b e f

o r e the o ne-year statutory d eadline f or f iling a § 2 254 application expired. Richards argued that he filed the petition on October 12, 2010, the date prison records indicate he put the petition i nto the prison mail s ystem. Thaler argued the petition was f iled 37 d ays later on November 18, 2010, the date the petition was stamped as received by the state court. According t o Richards, 329 days elapsed from the date the conviction became final—N o v e mber 17, 2009—until the d ate he f iled his state petition—October 12, 2010. The parties agreed 22 days elapsed between the date the state court denied p ost-conviction relief a nd Richards mailed his § 2254 application on February 11, 2011.

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Richards argued that because only a total of 351 days, not counting the tolling period, elapsed after his conviction became final, his § 2254 p etition w as filed within the one-year limitations period and was thus timely. Thale r argued because the state conviction petition was not filed until Novem b e r 18, 2010, when s tamped by the clerk of the c ourt, Richards missed the one-year deadline for filing a § 2254 application. The district court agreed with Thaler and held the application untimely, granted Thaler’s motion for summary judgment, and dismissed the application. The district court also denied a COA. Richards filed a timely notice of appeal. We granted a C O A o n the following i s sues: “ (1) whether in light of Campbell v. State , 320 S.W.3d 338, 339 (Tex. Crim. App. 2010), Richards’ state post-conviction petition s hould be deemed f iled on the date that he placed it into the p rison mail system a nd (2) whether Richards is entitled to equitable tolling.” II When reviewing the d enial o f habeas relief, w e review issues of law d e

novo. Hardemon v. Quarterman , 516 F.3d 272, 274 (5th Cir. 2008) (citing Moody

v. Johnson , 139 F.3d 477, 480 (5th Cir. 1998)). We revie w de novo an order dismissing a habeas petition as time-barred under the Ant i t errorism and Effective Death Penalty Act (“AEDPA”). Causey v. Cain , 450 F.3d 601, 603 (5th Cir. 2006). III A p erson i n state custody has one year to apply for a w rit of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). The one-year period begins to run, as

r e l e v a n t here, on the date the conviction became final at the conclusion of t h e time to seek direct review, § 2244(d)(1)(A), though the period is tolled while a properly filed s tate post-conviction petition is pending, § 2244(d)(2). Where the applicant files his o r her state post-conviction petition after the time for filing a

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§ 2254 application h as l apsed, the state petition does not o perate to toll the
one-year limitations period. Scott v. Johnson , 227 F.3d 260, 263 (5th C ir. 2000). In Houston v. L ack , the Supreme Court held that a pro se prisoner’s notice of appeal u nder Federal Rule of Appellate Procedure 4(a)(1) is deemed filed as of the date it is delivered to prison officials for mailing. 4 87 U .S. 266, 270 (1988). The situation of prisoners seeking to appeal w ithout the aid of counsel is unique. Such prisoners cannot take the steps other litigants c an take to monitor the p r ocessing of their notices of a ppeal and to ensure that the c ourt clerk r eceives and stamps their notices of appeal before the 30-day deadline. Unlike o ther litigants, pro se prisoners cannot personally travel to th e courthouse to see that th e notice is stamped “filed” or to establish the date on which the court received the notice. O ther litigants may choose t o entrust their appeals to the vagaries of the mail and th e c l erk’s p r ocess for stamping incoming papers, but only the pro se prisoner is forced to do so b y h i s s i t uation. And if other litigants do choose to u se th e mail, they can at least place the notice directly into the hands of th e United States Postal Service (or a private express c arrier); and they can follow its progress by calling the court to determine whether th e notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that thei r m onitoring will provide them w ith evidence t o demonstrate either excusable n eglect or that the notice was not stamped on th e date the c ourt received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions f

or them. Worse, the p ro se p risoner has no choice but to entrust the fo r w arding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No m atter h ow far i n advance th e pro se prisoner delivers his n o tice to the prison authorities, h e c a n never be sure that it will u ltimately g et stamped filed on time. And if there is a delay the p risoner suspects is attributable to the prison authorities, he is unlikely to have a n y means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the p art of prison authorities from slow mail service or the c o u r t clerk’s failure t o stamp the notice on the date received. Unskilled in law, unaided by counsel, and u nable to leave the prison, his control over the processing o f his notice necessarily c e a s e s a s soon as he hands it over to the only public officials t o
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whom he has access-the prison authorities-and the o nly information he will likely h ave is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice. Id. at 2 7 0

– 7 2

. We extended this rule, the “prison mailbox rule,” to other submissions of pro se i nmates. See, e.g., S potville v . Cain , 1 49 F.3d 3 74, 378 (5th C ir . 1998) (holding § 2254 applications deemed filed on date inmate ten d e r s petition to prison officials for mailing). In Coleman v. Johnson , 184 F.3d 398 ( 5th Cir. 1999), however, w e declined to apply the pris o n mailbox rule to a Texas post-conviction p e tition for the
purpose of determini n g whether the petition tolled the s tatute of limitations under § 2244(d)(2). We h eld, “when a prisoner asserts that hi s ab ility to file a federal habeas petition has been affected by a state p r oceeding, we will examine the facts to determine whether the prisoner i s entitled to equitable tolling under § 2244(d)(1).” Id. at 402. In Causey v. C

ain w e clarified that Coleman was merely i nterpreting Texas law. 450 F.3d 601, 605–06 (5th Cir. 2 006) (“[T]he Coleman decision was concerned with the imposition of a federal filing rule upon a sovereign state court.”). We held that when a state application is p roperly filed is a question of state law: Coleman does no t r e q u ire that we ignore the abundance of Louisiana case law following the prison mailbox rule. Although its reasoning i s less than clear, Coleman is best unders t o o d as an interpretation o f Texas law.

. . . This circuit, like most, holds that a properly filed s tate applic ati o n for collateral review is one submitted according to the state’s procedural requirements. At the time this Court decided Coleman , Texas l a w was unclear on, a nd arguably a v e r s e to, the prison mailbox rule. Implicit in Coleman ’s decis i o n not t o extend the mailbox rule to

. . . state habeas applications is th e principle that state courts have the right to interpret s tate ru les of filing and are not bound by Houston ’s construction of federal filing rules.

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Id

. at 605 (internal citations, footnotes, a nd quotation m arks omitted). Because Louisiana had chosen to a d o pt the prison mailbox rule for filings by pro se prisoners, under Louisiana law the petitioner’s a p p l i cation was deemed filed when he gave i t t o the prison authorities and not when it was stamped by the court clerk. Id. at 606–07. In Howland v. Quarterman , 507 F.3d 8 4 0 , 841 (5th Cir. 2007), we considered whether, in light of Warner v. Glass , 135 S .W.3d 681, 684 (Tex. 2004),

a Texas Supreme Court case applying the prison mailbox rule t o p risoners who f i l e c iv il actions under Texas’ Inmate Litigation Act, the prison mailbox rul e extends to Texas post-conviction petitions. We r efused to extend th e rule to state post-conviction petitions for two reasons. First, we n oted that the Texas Court of Criminal Appeals had clearly explained that a state post-conviction petition

was a criminal proceeding, not a civil action, and reasoned that Texas’ a doption of the p rison m ailbox rule for civil cases did not a f f e c t t he state’s filing requirements f

or criminal matters. H owland , 507 F.3d at 844–45 (citi n g Aranda

v. District Clerk , 2 07 S.W.3d 785, 786 (Te x . C r i m . App. 2006)). Second, we explained Warner did not apply where there w as no filing deadline. Id. at 845. In support of this determination, we cit e d a n intermediate state appellate court’s ruling that Rule 5 of the Texas Rules o f Civil Procedure, which deems a pleading timely filed if it is placed in the mail on or b efore the filing deadline and filed by the court within t en days after the deadline, did not a pply to a submission in a civil action where there w a s n o f iling deadline. Id. (citing In re Hearn , 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. pr o c e e d ing)); s ee T E X

. R. C I V

. P

. 5. Because Article 11.07 of the Texas Code of Criminal Procedure—the provision governing post-conviction petitions—also contained no filing deadline,

we reasoned the prison mailbox ru l e would n ot apply even if Warner extended to criminal proceedings. Howland , 507 F.3d at 845.

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Recently, in C

ampbell v. S tate , 320 S. W

. 3 d 3 38, 344 (Tex. Crim. App. 2010 ) , the Texas Court of Criminal Ap p eals held the prison mailbox rule also
ap p l i es in criminal proceedings. A defendant challenged the appellate court’s determination that his pro se notice of a ppeal was not timely f iled and argued t h at the prison mailbox rule should apply. I d. at 340–41. The Texas Court of Criminal Appeals found p e rsuasive the Supreme C ourt’s observations in Houston that a prisoner lacks control over how and when a prison mails a notice of a p p e al, has no way o f knowing if there has been a delay by prison staff, has

no r e course in the case of a delay, a nd is unable to personally deliver the notice of appeal. Id. at 342–43. The court recognized that the Texas Supreme Court had applied the prison mailbox rule in civil cases. I d. at 343. The court went

on t o e xplain that it likewise would not “penalize a pro se i n mate who timely delivers a document to the prison mailbox” and held “that the p l eadings of p ro

se inmates shall b e deemed filed at the time they are d elivere d t o p r i s o n authorities for forwarding to the court clerk.” Id. at 344. Campbell’s application of the prison mailbox ru le to c riminal proceedings thus directly u ndermines our d etermination in Howland that the prison mailbox rule does n ot apply to Texas post-co n viction petitions. See Howland , 507 F.3d at 844 (“[A] properly filed s tate application for c ollateral review is one submitted according to the state’s procedural requirements.”) (alterations re moved); Causey , 450 F.3d at 606 (looking t o s t a t e l a w to determine whether prison mailbox rule applies to Louisiana post-conviction petitions). The primary basis for our decision in Howland —that Texas does not apply the prison m ailbox rule in criminal proceedings, o f which post-conviction proceedings are a p art—has been contradicted by Campbell’s holding that the rule does apply in c r i m i n a l

cases. Thaler contend s that even in criminal c ases the prison m ailbox rule is limited t o filings that involve a deadline, relying o n H owland as well as
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pre- Campbell cases addressing the grace period described in Rule 5 of the Texas Code of Civil Procedure. A s Thaler points out, in Howland we e xplained that the prison mailbox rule was i n applicable in civil cases where there was n o filing deadline and thus would not a pply t o Texas post-conviction petitions even if the rule extended to c riminal proceedings. Howland , 507 F.3d at 845. I n Howland , however, we were being a sked to extend a rule a pplicable to T exas civil cases to criminal proceedings. See H owland , 507 F.3d at 844. To reach our c o nclusion that the rule could not apply absent a filing deadline, we looked to a Texas case construing Texas’ civil procedure rules. Se e id. at 8 45. In Campbell , h owever, t h e c o u rt did n ot limit its holding to s ituations involving f iling deadlines, but inste a d e x t e n ded it t o “pleadings” of pro se inmates in criminal proceedings generally. Like our sister courts, we d ecline to penalize a p ro se inmate who timely delivers a document to the prison mailbox. We find th e analysis o f the United States Supreme Court i n Houston v. Lack to be compelling.

. . . We h old that the pleadings of p ro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk. Campbell , 320 S .W.3d at 343–44. Neither Campbell nor any o ther case restricts Texas’ application of the prison mailbox rule in criminal c ases to circumstances where there is a filing deadline. 1 We must apply Campbell’ s holding that under Texas law the p leadings of pro se inmates, including petitions for state postconviction relief, are deemed filed at the time they are d e livered to prison authorit i e s , n o t at the time they are stamped by the c lerk of the court. See

1 I n d e e d , the Texas Court of Crim inal Ap p eals recently is sued an ord er in a p os tconviction p roceed ing citing Ca m p bel l and d irecting the trial court to d eterm ine w hen certain p os t- conviction p etitions s ubm itted und er Article 11. 07 “w ere d elivered to p ris on authorities ” and w hether they w ere f iled bef ore other petitions w ere d enied

. Ex p a rte M a con , N os . WR- 76, 956- 05 & WR- 76, 956- 06, 2012 WL 5363041, at * 1 (Tex. Crim

. Ap p . Oct. 3 1 , 2 0 1 2 )

. Although this ord er is unp ublis hed , it s up p orts the p rop os ition that in crim inal p roceed ings , the Texas Court of Crim inal Ap p eals d id not intend to l im it the p ris on m ailbox rule to circum s tances w here there is a f iling d ead line.

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Jacobs v. Nat’l Drug Intelligence Ctr., 5 48 F.3d 3 75, 378 (5th Cir. 2008) (holding

one panel may overturn another panel’s d ecision where there is an intervening change i n law). Therefore, we hold under Texas law Richards’ § 2254 application

was deemed filed o n October 12, 2010, the date he turned the ap plication over to prison authorities to b e filed. Accordingly, w e do not r e ach Richards’ claim that he is entitled to equitable tolling. IV For these reasons, we REVERSE and REMAND.

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