IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 moved to file a habeas corpus petition. The district court

dismissed the application as 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 appeals, contending the district court erred by deeming the date the

clerk of 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 pro

se inmates, including petitions for state post-conviction relief, are deemed filed

at the time they are delivered to prison authorities, not at the time they are

United States Court of Appeals

Fifth Circuit

F I L E D

March 5, 2013

Lyle W. Cayce

Clerk
No. 11-20803

2

stamped by the clerk of the court. Richards also asserts he is entitled to

equitable tolling. In light of the Texas Court of Criminal Appeals holding in

Campbell v. State, 320 S.W.3d 338, 339 (Tex. Crim. 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 facility and sentenced to twenty-five years of incarceration. His

direct appeal was unsuccessful, and on August 19, 2009, the Texas Court of

Criminal Appeals declined review. Because Richards did not petition the

Supreme Court for certiorari his conviction 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 mail system

on October 12, 2010. On November 18, 2010, 37 days later, it was stamped

received by the Texas Court of Criminal Appeals. The court denied relief on

January 19, 2011. 

On February 11, 2011, Richards mailed his § 2254 application to the

federal district court. Thaler moved for summary judgment alleging that the

application was untimely. Richards opposed the motion. 

The parties disputed whether Richards filed his state post-conviction

petition before the one-year statutory deadline for filing a § 2254 application

expired. Richards argued that he filed the petition on October 12, 2010, the date

prison records indicate he put the petition into the prison mail system. Thaler

argued the petition was filed 37 days later on November 18, 2010, the date the

petition was stamped as received by the state court. According to Richards, 329

days elapsed from the date the conviction became final—November 17,

2009—until the date he filed his state petition—October 12, 2010. The parties

agreed 22 days elapsed between the date the state court denied post-conviction

relief and Richards mailed his § 2254 application on February 11, 2011.
No. 11-20803

3

Richards argued that because only a total of 351 days, not counting the tolling

period, elapsed after his conviction became final, his § 2254 petition was filed

within the one-year limitations period and was thus timely. Thaler argued

because the state conviction petition was not filed until November 18, 2010,

when stamped by the clerk of the court, 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 COA on the following issues: “(1) whether in light of

Campbell v. State, 320 S.W.3d 338, 339 (Tex. Crim. App. 2010), Richards’ state

post-conviction petition should be deemed filed on the date that he placed it into

the prison mail system and (2) whether Richards is entitled to equitable tolling.”

II

When reviewing the denial of habeas relief, we review issues of law de

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 review de novo an order

dismissing a habeas petition as time-barred under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”). Causey v. Cain, 450 F.3d 601, 603 (5th

Cir. 2006). 

III

A person in state custody has one year to apply for a writ of habeas corpus

in federal court. 28 U.S.C. § 2244(d)(1). The one-year period begins to run, as

relevant here, on the date the conviction became final at the conclusion of the

time to seek direct review, § 2244(d)(1)(A), though the period is tolled while a

properly filed state post-conviction petition is pending, § 2244(d)(2). Where the

applicant files his or her state post-conviction petition after the time for filing a
No. 11-20803

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§ 2254 application has lapsed, the state petition does not operate to toll the

one-year limitations period. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).

In Houston v. Lack, the Supreme Court held that a pro se prisoner’s notice

of appeal under Federal Rule of Appellate Procedure 4(a)(1) is deemed filed as

ofthe date itis delivered to prison officials for mailing. 487 U.S. 266, 270 (1988).

The situation of prisoners seeking to appeal without the aid of

counsel is unique. Such prisoners cannot take the steps other

litigants can take to monitor the processing oftheir notices of appeal

and to ensure that the court clerk receives and stamps their notices

of appeal before the 30-day deadline. Unlike other litigants, pro se

prisoners cannot personally travel to the courthouse to see that the

notice is stamped “filed” or to establish the date on which the court

received the notice. Other litigants may choose to entrust their

appeals to the vagaries of the mail and the clerk’s process for

stamping incoming papers, but only the pro se prisoner is forced to

do so by his situation. And if other litigants do choose to use the

mail, they can at least place the notice directly into the hands of the

United States Postal Service (or a private express carrier); and they

can follow its progress by calling the courtto determine whether the

notice has been received and stamped, knowing that if the mail goes

awry they can personally deliver notice at the last moment or that

their monitoring will provide them with evidence to demonstrate

either excusable neglect or that the notice was not stamped on the

date the court received it. Pro se prisoners cannot take any of these

precautions; nor, by definition, do they have lawyers who can take

these precautions for them. Worse, the pro se prisoner has no choice

but to entrust the forwarding of his notice of appeal to prison

authorities whom he cannot control or supervise and who may have

every incentive to delay. No matter how far in advance the pro se

prisoner delivers his notice to the prison authorities, he can never

be sure thatit will ultimately get stamped filed on time. And ifthere

is a delay the prisoner suspects is attributable to the prison

authorities, he is unlikely to have any means of proving it, for his

confinement prevents him from monitoring the process sufficiently

to distinguish delay on the part of prison authorities from slow mail

service or the court clerk’s failure to stamp the notice on the date

received. Unskilled in law, unaided by counsel, and unable to leave

the prison, his control over the processing of his notice necessarily

ceases as soon as he hands it over to the only public officials to
No. 11-20803

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whom he has access-the prison authorities-and the only information

he will likely have is the date he delivered the notice to those prison

authorities and the date ultimately stamped on his notice. 

Id. at 270–72. We extended this rule, the “prison mailbox rule,” to other

submissions of pro se inmates. See, e.g., Spotville v. Cain, 149 F.3d 374, 378 (5th

Cir. 1998) (holding § 2254 applications deemed filed on date inmate tenders

petition to prison officials for mailing). 

In Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999), however, we declined

to apply the prison mailbox rule to a Texas post-conviction petition for the

purpose of determining whether the petition tolled the statute of limitations

under § 2244(d)(2). We held, “when a prisoner asserts that his ability to file a

federal habeas petition has been affected by a state proceeding, we will examine

the facts to determine whether the prisoner is entitled to equitable tolling under

§ 2244(d)(1).” Id. at 402. 

In Causey v. Cain we clarified that Coleman was merely interpreting

Texas law. 450 F.3d 601, 605–06 (5th Cir. 2006) (“[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 properly filed is a question of

state law:

Coleman does not require that we ignore the abundance of

Louisiana case law following the prison mailbox rule. Although its

reasoning is less than clear, Coleman is best understood as an

interpretation of Texas law. . . . This circuit, like most, holds that a

properly filed state application for collateral review is one submitted

according to the state’s procedural requirements. At the time this

Court decided Coleman, Texas law was unclear on, and arguably

averse to, the prison mailbox rule. Implicit in Coleman’s decision

not to extend the mailbox rule to . . . state habeas applications is the

principle that state courts have the right to interpret state rules of

filing and are not bound by Houston’s construction of federal filing

rules.
No. 11-20803

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Id. at 605 (internal citations, footnotes, and quotation marks omitted). Because

Louisiana had chosen to adopt the prison mailbox rule for filings by pro se

prisoners, under Louisiana law the petitioner’s application was deemed filed

when he gave it to the prison authorities and not when it was stamped by the

court clerk. Id. at 606–07. 

In Howland v. Quarterman, 507 F.3d 840, 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 to prisoners who

file civil actions under Texas’ Inmate Litigation Act, the prison mailbox rule

extends to Texas post-conviction petitions. We refused to extend the rule to state

post-conviction petitions for two reasons. First, we noted 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’ adoption

of the prison mailbox rule for civil cases did not affect the state’s filing

requirements for criminal matters. Howland, 507 F.3d at 844–45 (citing Aranda

v. District Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006)). Second, we

explained Warner did not apply where there was no filing deadline. Id. at 845.

In support ofthis determination, we cited an intermediate state appellate court’s

ruling that Rule 5 of the Texas Rules of Civil Procedure, which deems a pleading

timely filed if it is placed in the mail on or before the filing deadline and filed by

the court within ten days after the deadline, did not apply to a submission in a

civil action where there was no filing deadline. Id. (citing In re Hearn, 137

S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding)); see TEX. R.

CIV. 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 rule would not apply even if Warner extended

to criminal proceedings. Howland, 507 F.3d at 845.
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Recently, in Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App.

2010), the Texas Court of Criminal Appeals held the prison mailbox rule also

applies in criminal proceedings. A defendant challenged the appellate court’s

determination that his pro se notice of appeal was not timely filed and argued

that the prison mailbox rule should apply. Id. at 340–41. The Texas Court of

Criminal Appeals found persuasive the Supreme Court’s observations in

Houston that a prisoner lacks control over how and when a prison mails a notice

of appeal, has no way of knowing if there has been a delay by prison staff, has

no recourse in the case of a delay, and 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. Id. at 343. The court went

on to explain that it likewise would not “penalize a pro se inmate who timely

delivers a document to the prison mailbox” and held “that the pleadings of pro

se inmates shall be deemed filed at the time they are delivered to prison

authorities for forwarding to the court clerk.” Id. at 344.

Campbell’s application of the prison mailbox rule to criminal proceedings

thus directly undermines our determination in Howland thatthe prison mailbox

rule does not apply to Texas post-conviction petitions. See Howland, 507 F.3d

at 844 (“[A] properly filed state application for collateral review is one submitted

according to the state’s procedural requirements.”) (alterations removed);

Causey, 450 F.3d at 606 (looking to state law 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 mailbox rule

in criminal proceedings, of which post-conviction proceedings are a part—has

been contradicted by Campbell’s holding that the rule does apply in criminal

cases. 

Thaler contends that even in criminal cases the prison mailbox rule is

limited to filings that involve a deadline, relying on Howland as well as
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Indeed, the Texas Court of Criminal Appeals recently issued an order in a postconviction proceeding citing Campbell and directing the trial court to determine when certain

post-conviction petitions submitted under Article 11.07 “were delivered to prison authorities”

and whether they were filed before other petitions were denied. Ex parte Macon, Nos.

WR-76,956-05 & WR-76,956-06, 2012 WL 5363041, at * 1 (Tex. Crim. App. Oct. 31, 2012).

Although this order is unpublished, it supports the proposition that in criminal proceedings,

the Texas Court of Criminal Appeals did not intend to limit the prison mailbox rule to

circumstances where there is a filing deadline. 

8

pre-Campbell cases addressing the grace period described in Rule 5 of the Texas

Code of Civil Procedure. As Thaler points out, in Howland we explained thatthe

prison mailbox rule was inapplicable in civil cases where there was no filing

deadline and thus would not apply to Texas post-conviction petitions even if the

rule extended to criminal proceedings. Howland, 507 F.3d at 845. In Howland,

however, we were being asked to extend a rule applicable to Texas civil cases to

criminal proceedings. See Howland, 507 F.3d at 844. To reach our conclusion

that the rule could not apply absent a filing deadline, we looked to a Texas case

construing Texas’ civil procedure rules. See id. at 845. In Campbell, however,

the court did not limit its holding to situations involving filing deadlines, but

instead extended it to “pleadings” of pro se inmates in criminal proceedings

generally. 

Like our sister courts, we decline to penalize a pro se inmate

who timely delivers a document to the prison mailbox. We find the

analysis of the United States Supreme Court in Houston v. Lack to

be compelling. . . . We hold that the pleadings of pro 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 other case restricts

Texas’ application of the prison mailbox rule in criminal cases to circumstances

where there is a filing deadline.1 We must apply Campbell’s holding that under

Texas law the pleadings of pro se inmates, including petitions for state postconviction relief, are deemed filed at the time they are delivered to prison

authorities, not at the time they are stamped by the clerk of the court. See
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Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (holding

one panel may overturn another panel’s decision where there is an intervening

change in law). Therefore, we hold under Texas law Richards’ § 2254 application

was deemed filed on October 12, 2010, the date he turned the application over

to prison authorities to be filed. Accordingly, we do not reach Richards’ claim

that he is entitled to equitable tolling. 

IV

For these reasons, we REVERSE and REMAND.