Colby Leonard v. Keith Deville, Warden

Case: 18-30374 Document: 00515296327 Page: 1 Date Filed: 02/03/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-30374 February 3, 2020 Lyle W. Cayce Clerk COLBY DRANOEL LEONARD, Petitioner – Appellant v. KEITH DEVILLE, WARDEN, WINN CORRECTIONAL CENTER, Respondent – Appellee Appeal from the United States for the Middle District of Louisiana Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges. STUART KYLE DUNCAN, Circuit Judge: Colby Leonard, a Louisiana state prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition as time-barred. Leonard was granted a Certificate of Appealability (“COA”) to consider whether he was entitled to statutory tolling of the federal limitation period pursuant to 28 U.S.C. § 2244(d)(2). The specific issue, which has divided federal district courts in Louisiana, is this: when a state prisoner is implicitly granted extra time to seek supervisory writs from the denial of his state post-conviction application—and he does so within that time—does his initial application therefore remain “pending” under the tolling provision in § 2244(d)(2)? We hold that the answer is yes, a conclusion dictated by our own precedents and by the Supreme Court’s Case: 18-30374 Document: 00515296327 Page: 2 Date Filed: 02/03/2020 No. 18-30374 teaching that a state post-conviction application remains “pending” for statutory tolling purposes “as long as the ordinary state collateral review process is ‘in continuance.’” Carey v. Saffold, 536 U.S. 214, 219–20 (2002). Concluding that Leonard was entitled to statutory tolling and that his petition was therefore not time-barred, we vacate the district court’s dismissal and remand for further proceedings. I. Leonard was convicted of armed robbery under Louisiana law in 2008. His conviction was affirmed on direct appeal in March 2009, and the Louisiana Supreme Court denied review January 8, 2010. State v. Leonard, 24 So.3d 859 (La. 2010). The time for seeking certiorari from the United States Supreme Court expired April 8, 2010. S. Ct. Rule 13. Leonard then waited 308 days, until February 10, 2011, to apply to the state trial court for post-conviction relief (“PCR”), which was dismissed “as without merit” May 1, 2013. On May 23, 2013, he applied to a state appellate court for supervisory writs, which were denied August 27, 2013. The appellate court found Leonard failed to include supporting record materials as required by court rules. State v. Leonard, 2013 WL 12120742, at *1 (La. App. 1 Cir. Aug. 27, 2013) (unpublished); see La. Unif. Ct. App. Rule 4-5. The court prohibited Leonard from supplementing his application or seeking rehearing. Id. (citing La. Unif. Ct. App. Rules 2-18.7 & 4-9). However, the court also ruled that, “[i]n the event [Leonard] elects to file a new application with this Court, the application must be filed on or before October 22, 2013.” Id. Leonard filed a properly-supported writ application September 12, 2013, which was denied February 27, 2014. On March 19, 2014, he sought review from the Louisiana Supreme Court, which was denied January 9, …Original document

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