Rogers v. Michaels

Filing 920070711

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 11, 2007 Charles R. Fulbruge III Clerk No. 05-30581 Summary Calendar LIGE ROGERS, Petitioner-Appellant, versus VENETIA T. MICHAELS, Respondent-Appellee. -------------------Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:04-CV-223 -------------------Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges. PER CURIAM:* Lige Rogers, Louisiana prisoner # 121856, was convicted by a jury of distribution of heroin and sentenced to life imprisonment. The district court dismissed his 28 U.S.C. § 2254 petition as barred by the applicable one-year statute of limitations. court granted a COA on the time-bar issue. filed a brief. This

The defendant has not

For the following reasons, we vacate the district

court's judgment and remand for further development of the record. Under 28 U.S.C. § 2244(d), a one-year period of limitation applies to § 2254 petitions.
*

"The limitation period shall run from

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

the latest of--(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . ." § 2244(d)(1)(A). State prisoners

whose judgments became final prior to the April 24, 1996, enactment date of AEDPA are afforded a one-year grace period, meaning that their petition must have been filed on or before April 24, 1997. Flanagan v. Johnson, 154 F.3d 196, 199-200 (5th Cir. 1998).

However, the one-year period is tolled for any "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment . . . [was] pending." § 2244(d)(2). Rogers's conviction and sentence

were affirmed by the state appellate court on April 13, 1995. Rogers did not seek review in the Louisiana Supreme Court.

Rogers's state postconviction application, filed on September 18, 1995, and subsequent motion for a new trial, were both denied on January 5, 1999. least that time. an additional 30 Thus, the one-year period was tolled until at The district court concluded that it was tolled days, the time to file a supervisory writ

application in the Louisiana Court of Appeal. 3 (West 1999). Rogers filed a letter, construed as

LA. UNIFORM APP. R. 4-

a

supervisory

writ

application, which was deemed filed on April 7, 1999, and denied on April 26, 1999. At some undetermined point, Rogers obtained an He also later

oral extension of time to seek supervisory writs.

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filed a motion on July 7, 1999, seeking an extension of time.

He

later filed two supervisory writ applications, which were denied on the merits. His final writ application to the Louisiana Supreme

Court was denied on November 14, 2003. The district court concluded that Roger's written motion for an extension of time in July 1999 did not toll the one-year period because it was not filed within the 30-day period for seeking a supervisory writ. The court also counted the period from February However, it is clear that

5, 1999, to April 7, 1999, as untolled.

Rogers obtained an oral extension at some point and it appears that the extension was of indefinite duration. was within the 30-day period, then the properly filed and pending. If that oral extension

applications may have been

See Grillette v. Warden, Winn Corr.

Ctr., 372 F.3d 765, 773 (5th Cir. 2004); Dixon v. Cain, 316 F.3d 553, 555 (5th Cir. 2003); Melancon v. Kaylo, 259 F.3d 401, 404 (5th Cir. 2001). Further, both Rogers's state supervisory writ

applications were addressed on the merits; neither was rejected as untimely. the oral However, the record is not complete to determine when extension of time was granted, the length of the

extension, or to which of Rogers's supervisory writ applications it applied. Thus, its effect on the one-year limitations period

cannot be ascertained.

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For the foregoing reasons, we VACATE the judgment of the district court and REMAND this matter for further development of the record on the timing and effect of the oral extension of time.

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