McGee v. Cain

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 28, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30803
Summary Calendar
WILTON MCGEE,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
(02-CV-850-B)
--------------------
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Wilton McGee, Louisiana prisoner #370747,
was convicted of second degree murder by a Louisiana jury on July
26, 1996. The trial court sentenced McGee to life imprisonment at
hard labor without parole, probation, or suspension of sentence.
The Louisiana Court of Appeal affirmed McGee’s conviction and
sentence on April 8, 1998. McGee did not seek review in the
Louisiana Supreme Court until November 10, 1999, well after the
thirty days for seeking a writ from the Louisiana Supreme Court, as
provided in LA. SUP. CT. R. X, ¶ 5(a). McGee concedes that his writ

-- 1 of 5 --

2
request was filed out-of-time. The Louisiana Supreme Court
summarily denied McGee a supervisory writ on June 23, 2000. In
August 2002, after McGee’s applications for state postconviction
relief were denied, he filed the 28 U.S.C. § 2254 petition that is
the subject of this appeal.
The district court dismissed McGee’s petition as time-barred
under the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA)
one-year limitations period, set forth in 28 U.S.C. § 2244(d)(1).
A certificate of appealability (COA) was granted on the issue
whether McGee’s conviction became final for limitations purposes
either (a) on the date the time expired for seeking a supervisory
writ in the Louisiana Supreme Court or (b) on the date the
Louisiana Supreme Court actually denied McGee’s apparently untimely
writ application.
The AEDPA established a one-year limitations period for the
filing of a writ of habeas corpus by a person in state custody.
See 28 U.S.C. § 2244(d); Ott v. Johnson, 192 F.3d 510, 512 (5th
Cir. 1999). The limitations period commences on the date the
judgment in question becomes final by the conclusion of direct
review or the expiration of the time for seeking such review.
§ 2244(d)(1)(A).
As noted, the Louisiana Court of Appeal affirmed McGee’s
conviction and sentence on April 8, 1998. McGee had “within thirty
days of the mailing of the notice of the original judgment of the
court of appeal” to make his application to the Louisiana Supreme

-- 2 of 5 --

3
Court. LA. SUPR. CT. R. X, § 5(a). As McGee allowed the time for
seeking further direct review to expire, the plain language of 28
U.S.C. § 2244(d)(1)(A) establishes that AEDPA’s one-year
limitations period started to run on May 8, 1998, which is “the
expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A); see also Roberts v. Cockrell, 319 F.3d 690, 694
(5th Cir. 2003) (if defendant stops the appeal process before entry
of judgment by court of last resort, the conviction becomes final
when the time for seeking further direct review in the state court
expires). Therefore, pursuant to 28 U.S.C. § 2244(d)(1)(A), the
limitations period in McGee’s case commenced on May 8, 1998.
The issue is whether McGee’s out-of-time filing of his request
for a supervisory writ had any impact on either the commencement or
the running of the limitations period. McGee relies on O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999), and argues that his
conviction became final for limitations purposes on the date that
the Louisiana Supreme Court actually denied his untimely writ
application. McGee’s reliance on O’Sullivan is misplaced. In
O’Sullivan, the Supreme Court concluded that state prisoners must
give state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the state’s
established appellate review process. Id. at 840. The Supreme
Court held in O’Sullivan that the petitioner’s failure to present
three of his federal habeas claims to the Illinois Supreme Court in
a timely fashion resulted in a procedural default of those claims.

-- 3 of 5 --

4
Id. at 848. O’Sullivan does not specifically address what effect
an out-of-time filing would have on the AEDPA limitations period
and therefore does not provide McGee with authority for the relief
that he seeks. See id. at 840-848.
Our recent analysis in the Salinas v. Dretke, 354 F.3d 425
(5th Cir.), cert. denied, 124 S. Ct. 2099 (2004), demonstrates that
McGee’s conviction became final for the AEDPA’s limitations
purposes on the date that the time expired for seeking a
supervisory writ in the Louisiana Supreme Court, not the date that
the Louisiana Supreme Court denied McGee’s untimely writ
application. The Salinas panel decided that, in Texas, an
out-of-time petition for discretionary review is in the nature of
habeas relief and that the grant of such relief “tolls [the]
AEDPA’s statute of limitations until the date on which the Court of
Criminal Appeals declines to grant further relief, but it does not
require a federal court to restart the running of [the] AEDPA’s
limitations period altogether.” Id. at 430 (footnote omitted).
In Louisiana, as in Texas, leave to file an out-of-time writ
application is obtained through the collateral review process. See
State v. Counterman, 475 So. 2d 336, 338-39 (La. 1985) (the
appropriate procedural vehicle for a defendant to seek the exercise
of his right to appeal, after the time for filing an appeal has
expired, is an application for post conviction relief); State v.
Cage, 637 So. 2d 89, 90 (La. 1994) (transfer to district court of
out-of-time rehearing application filed in Louisiana Supreme Court

-- 4 of 5 --

5
with instructions to consider rehearing application as an
application for postconviction relief); Williams v. Cain, 217 F.3d
303, 308 (5th Cir. 2000) (emphasizing that Louisiana Supreme Court
Rule X, § 5(a), “sets out no specific exceptions to, or exclusions
from, the [30-day-filing] requirement” and that the rule expressly
“forbids any extension of the thirty-day limit”). Thus, under the
rationale set forth in Salinas, the AEDPA limitations period would
be tolled only while McGee sought and obtained leave to file the
out-of-time writ request. See Salinas, 354 F.3d at 430. In
McGee’s case, however, more than a year elapsed after May 8, 1998
(the triggering date for the AEDPA limitations period) before McGee
filed his out-of-time writ request on November 10, 1999.
Consequently, McGee’s out of-time writ application did not toll the
limitations period. Also, McGee did not have state habeas
applications pending during the limitations period. Thus, tolling
pursuant to 28 U.S.C. § 2244(d)(2) is not at issue. The one-year
limitations period therefore ran untolled and uninterrupted from
May 8, 1998 to May 9, 1999, when it expired.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.

-- 5 of 5 --