# Feliz Talaz Villegas v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division

> Court of Appeals for the Fifth Circuit · September 14, 1999 · 184 F.3d 467

URL: https://www.frixlaw.com/law-library/cases/9492306

## Case

- **Full name:** Feliz Talaz VILLEGAS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** September 14, 1999
- **Citations:** 184 F.3d 467
- **Precedential status:** Published
- **Opinion:** Dissent by Garza
- **Judges:** Garza, Benavides, Dennis
- **Cited by:** 156 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated by Pace v. DiGuglielmo, 544 U.S. 408 (2005).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492306

## How later opinions describe it (automated extraction)

- concluding that a petition dismissed by the state court on res judicata grounds was “properly filed”
- holding properly filed second or successive state habeas petition may toll AEDPA’s statute of limitations but noting “any lapse of time before a state application is properly filed will be counted against the one-year limitation period”
- finding that Texas procedural rule forbidding courts from considering successive habeas applications allowed for exceptions and was not an a absolute bar to filing
- holding “that a ‘properly filed application’ for § 2244(d)(2) purposes is one that conforms with a state’s applicable procedural filing requirements”

## Opinion text

EMILIO M. GARZA, Circuit Judge,
dissenting:
I write separately because I conclude that Villegas’s second state habeas petition did not toll the limitations period. I concur with the conclusion of the majority opinion that 28 U.S.C. § 2244 (d)(2) authorizes tolling the limitations period during the pendency of petitions filed in accordance with a state’s procedural filing requirements. I disagree, however, with the majority’s conclusion that Texas law places no limit on the number of successive state habeas petitions. I conclude that Ville-gas’s second petition was not “properly filed” for the purposes of § 2244(d)(2), because Villegas did not file his petition in accordance with Texas’s procedural requirements for the filing of a successive habeas petition.
Villegas filed two petitions for state collateral relief following the conclusion of direct review of his convictions. The Texas Court of Criminal Appeals dismissed his second petition as a Successive or Abuse of the Writ Petition, in accordance with Article 11.07, Section 4, of the Texas Code of Criminal Procedure. See Tex.Code Crim. P. Ann. art. 11.07 (West Supp.1999). Ville-gas filed the instant habeas petition in federal district court. The magistrate judge found that the second state petition was not a proper filing, because the Texas court had refused the petition under state law as an abuse of the writ. The magistrate judge then concluded that the second petition was not “properly filed” according to the AEDPA, and thus would not toll the limitations period for filing the federal ha-beas petition. See 28 U.S.C. § 2244 (d)(1). Subsequently, the district court adopted the magistrate judge’s recommendation that the petition be dismissed with prejudice on the ground that it was barred by limitations. Villegas timely appealed.
Title 28 U.S.C. § 2244 (d)(1) provides for a one-year limitations period for a state prisoner to file a writ of habeas corpus. Section 2244(d)(2) tolls the limitations period: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” The statute does not define the meaning of the phrase “properly filed,” and the legislative history is similarly silent as to its import. See, e.g., Hughes v. Irvin, 967 F.Supp. 775, *474 778 (E.D.N.Y.1997). Federal courts routinely defer to state procedural filing requirements, in lieu of creating federal filing requirements, to determine whether a habeas petition is “properly filed” in state court. 1 See, e.g., United States ex rel. Morgan v. Gilmore, 26 F.Supp.2d 1035, 1038 (N.D.Ill.1998) (stating that a “properly filed application” is one filed in accordance with a state’s procedural requirements).
The parties dispute when a petition qualifies as “properly filed” under Texas law. Villegas argues that a petition is “properly filed” in Texas when it “is filed in the court in which the conviction being challenged was obtained.” 2 The Respondent argues that a petition cannot be considered to have been “properly filed” if the petition was dismissed under state procedural rules as successive. The Respondent argues, essentially, that the failure to comply with Article 11.07, Section 4, means that Villegas’s state habeas application was not “properly filed.”
The majority opinion does not properly characterize the Respondent’s argument. The majority states that “we are reluctant to engraft a merit requirement into § 2244(d)(2) without some indication of congressional intent to do so.” 3 The opinion states later that, “[w]e similarly refuse to find that a successive state application or one containing procedurally barred claims is per se improperly filed.” Such statements, which make no reference to state law filing requirements, indicate that the majority opinion is addressing whether the phrase “properly filed” should include a federally-created merits inquiry irrespective of state law. The issue of whether to read additional federal requirements into the meaning of “properly filed” is irrelevant, however, to the issue of whether a petition is not “properly filed” because it fails to comply with a state’s procedural requirements. The Respondent is not requesting that we add federal requirements beyond those required by Texas procedural law. Rather, the Respondent’s argument is grounded fundamentally on Villegas’s failure to comply with Texas procedure. The Respondent argues that Villegas’s second petition, which was dismissed as an abuse of the writ under Article 11.07, Section 4, failed to comply with Texas’s procedural requirements. Thus, the issue on appeal is whether Texas’s abuse-of-the-writ statute is a state procedural filing requirement.
Because I disagree with the majority’s characterization of the Respondent’s argument, I also disagree with the relevance of many of its arguments. Much of the majority’s discussion considers whether “properly filed” includes a merits requirement independent of a state’s procedural requirements. The majority states that it will not engraft a merits requirement into § 2244(d)(2) without some indication of congressional intent to do so. After acknowledging that the plain language and the legislative history are silent as to the meaning of “properly filed,” the majority infers congressional intent from the lan *475 guage, structure, and purposes of the AEDPA. There is no indication, however, that Congress even considered this issue. Moreover, to the extent that one can infer congressional intent from the language, structure, or purposes of the AEDPA, the inference is that federal courts should defer to state procedural filing requirements.
The majority reasons from the absence of language in the AEDPA that refers to either merits requirements or successive-petition requirements. For example, the majority states that, “[h]ad Congress intended to condition tolling on a state court finding of merit, it could have drafted § 2244(d)(2) to exclude frivolous petitions from its scope. So too could Congress have crafted a provision that clearly withheld tolling from prisoners filing in state court successive petitions or petitions containing proeedurally barred claims.” Yet, Congress’s choice of the phrase “a properly filed application” does not have any bearing on which types of state requirements apply. If federal courts require a petition to have “merit” if state procedural law so requires, then there was no need for Congress to add a requirement that the petition be non-frivolous. On the other hand, some states may not include any form of “merits” inquiry in their state procedural filing requirements. For petitions filed in these states, federal courts should not perform a “merits” inquiry, because these states would not. If Congress had “crafted a provision that clearly withheld tolling from prisoners filing successive petitions,” as the majority suggests, then in states that allow successive petitions, this provision would be in conflict with state law. A specification by Congress that “properly filed” shall include, or shall not include, certain procedural requirements would be inconsistent with deferring to the states. It is doubtful that Congress wished to add procedural filing requirements beyond those required by the states. To the contrary of the majority’s opinion, the congressional intent ascertained from the phrase “properly filed” suggests deferring to all state procedural filing requirements, including those for successive petitions.
The majority opinion suggests that the structure of the AEDPA evinces congressional intent. The majority states “Congress enacted AEDPA against a backdrop of federal habeas law dealing with procedurally barred claims.” The majority intimates that considering successive-petition requirements in the AEDPA’s tolling provisions would alter this “legal landscape.” Yet, the “legal landscape” is no more altered by recognizing states’ successive-petition requirements than it is by recognizing timing requirements. Procedural default applies to claims that are filed late, and yet the majority recognizes that a “properly filed application” is one that is not filed late. See, e.g., Coleman v. Thompson, 501 U.S. 722, 749 , 111 S.Ct. 2546, 2564 , 115 L.Ed.2d 640 (1991) (“By filing late, Coleman defaulted his entire state collateral appeal.”). The majority did not look .for congressional intent to alter the law on procedural default before it held that a “properly filed application” conforms with a state’s applicable procedural requirements, which includes timing requirements. Therefore, it is disingenuous for the majority to cite the law regarding procedural default as an indicator of congressional intent.
The majority also supports its structural interpretation by reference to 28 U.S.C. § 2244 (a)-(b). The opinion explains that Congress dealt with the problems raised by successive federal petitions at the same time that it drafted the tolling provisions in § 2244(d)(2). The majority states that Congress’s choice not to address successive state petitions in § 2244(d)(2) means that we should narrowly read the phrase “properly filed.” This, structural choice, however, is easily explained. Although Congress created federal procedural filing requirements to properly file a successive federal petition, it refrained from specifying state procedural filing requirements. This structural choice can be read as a *476 display of comity toward state procedural filing requirements, which may or may not include successive-petition requirements. If anything, § 2244(b) suggests that a state’s procedural requirements may include successive-petition requirements. In order to obtain a Certificate of Appealability (“COA”), § 2244(b)(3) requires an applicant to show either cause for failure to bring the claim in a prior petition or actual innocence. Yet, a successive federal habe-as petition would not be “properly filed” if the petitioner did not obtain a COA. The COA requirement suggests that a state’s “applicable procedural requirements” for a petition to be “properly filed” may, in some situations, include successive-petition requirements. Thus, I am unconvinced that the structure of the AEDPA favors the majority’s interpretation of congressional intent.
The majority explains that its interpretation comports with the principle of comity. To the extent that the majority is declining to add a federal substantive requirement to “properly filed,” I agree. However, to the extent that the majority refuses to recognize certain state procedural requirements, I find the majority opinion antithetical to the principle of comity. As explained above, if comity is a concern, then federal courts should look to state procedural filing requirements to ascertain whether a petition is filed properly. If a state does not allow prisoners to file frivolous successive petitions, then the federal courts should not undermine the state’s decision by tolling the AEDPA’s limitations period. Given that it is the state that created the successive-petition requirements, it cannot be said that the federal court that recognizes those state-created requirements is, according to the majority, second-guessing the state legislature’s decision regarding the disposition of state applications for post-conviction relief. 4 It cannot be said that the federal court is intruding into state proceedings or is not according adequate deference to the state courts.
The majority also explains that its interpretation comports with concerns regarding exhaustion. It states that we should not adopt an interpretation of § 2244(b)(2) that would discourage petitioners from exhausting claims in state court, “even by means of a second or subsequent petition for post-conviction relief where permissible under state law.” Lovasz, 134 F.3d at 148. This statement recognizes that, if a state has expressed its preference that its courts should not hear certain claims, then there is no reason to toll the federal limitations period while the petitioners pursue those claims in state court. If a court determines that an application is not filed according to state procedural requirements, which may or may not include successive-petition requirements, then that application should not toll the limitations period. Although the AEDPA has an emphasis on exhaustion, as the majority asserts, it also directs federal courts to toll the limitations period only for applications that are “properly filed” in state court.
In discussing the exhaustion requirement, the majority reasons that including a merits requirement in “properly filed” would incur problematic results. The majority’s concern is that prisoners will file unexhausted claims in federal court, and the federal district courts will abate the petitions or dismiss them without prejudice. If the state court determines that a petition does not meet the state’s procedural requirement, and this determination occurs outside the limitations period, then the prisoner’s frivolous petition is barred from federal review. This result is not problematic, because the only petitions that the limitations period will bar are those that are in violation of the state’s procedural rules. In any event, the re- *477 suits are no more problematic than those associated with some state timing requirements recognized by federal courts. See Triggs v. Cain, No. CIV. A. 97-2430, 1999 WL 127249 , at *2, 3 (E.D.La. Mar. 8, 1999) (finding that an application was not “properly filed” where the petitioner failed to prove a statute-of-limitations exception that applies where the petitioner receives new information). Further, if a state law bars certain successive petitions, then we should not allow a petitioner to forestall the federal limitations period by repeatedly filing such petitions. 5 Thus, I disagree with the majority’s exhaustion concerns.
I turn to whether Texas’s abuse-of-the-writ statute is a state procedural filing requirement. Article 11.07 of the Texas Code of Criminal Procedure provides the “Procedure after conviction without death penalty”:
§ 1. This article establishes the procedures for an application for writ of habe-as corpus in which the applicant seeks relief from a felony judgment imposing a penalty other than death.
§ 4. (a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or (2) by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt.
Tex.Code Crim. P. ANN. art. 11.07. We should interpret the Texas statute as a Texas court would interpret it. See United States v. Cobb, 975 F.2d 152, 156 (5th Cir.1992). “The primary rule in statutory interpretation is that a court must look to the intent of the legislature.” Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994). When determining legislative intent, courts may look to the language of the statute and the legislative history. See id.
Turning to the statute’s language, Section 1 states that Article 11.07 establishes the procedures for an application for a writ of habeas corpus. Section 1 confirms that Section 4 is a procedural requirement. Under Section, 4, if a successive habeas application is filed, a court may not consider the merits of the application absent one of the statutory exceptions, i.e. cause or actual innocence. The inquiry into whether the petition meets one of the statutory exceptions occurs precedent to an inquiry on the merits. The majority opinion states that Texas law places no absolute time or numerosity limitation on the filing of applications. Article 11.07, Section 4, places a limit, however, on the number of successive habeas applications — prisoners are limited to one habeas application except in limited circumstances. 6 Although a successive habeas application may be filed, it should not be considered “properly” filed if *478 a state court rejects it on the procedural grounds listed in Section 4. 7
The majority argues that Section 4 is not a procedural filing requirement by comparing it to other sections in the Texas Code of Criminal Procedure. The majority compares Article 11.07, which provides the “Procedure after conviction without death penalty,” to Article 11.071, which provides the “Procedure in death penalty cases.” Specifically, the majority makes a comparison to Article 11.071, Section 4, which provides some procedures for the filing of applications. 8 The proper comparison, however, is not to Article 11.071, Section 4. The counterpart of Article 11.07, Section 4, is Article 11.071, Section 5, which specifies the procedures for “Subsequent or Untimely Applications.” Article 11.071, Section 5(a), provides that, if an application is untimely or is a subsequent application, then a court may not consider the merits of the application unless the applicant establishes (1) cause for failure to present the claim in a timely initial "petition, (2) actual innocence, or (3) that the jurors would have answered differently the special sentencing issues. See Tex. Code CRIM. P. Ann. art. 11.071, § 5(a). This Section clearly parallels Section 4 of Article 11.07. The comparison-to Article 11.071 also benefits by consideration of Section 6 of Article 11.071. Section 6 states that, if the convicting court receives notice that the petition meets the requirements of Section 5, then a writ of habeas corpus shall issue. See Tex.Code Crim. P. Ann. art. 11.071, § 6. The clerk of the convicting court then makes a notation that the writ has issued and assigns a file number to the case. See id.
Section 5 limits the timing and number of habeas applications. As provided by Section 6, a writ will not issue unless the petition meets the requirements of Section 5. Thus, Section 5 of Article 11.071 is a procedural filing requirement. We have interpreted Section 5(a) as a procedural rule that “prohibits the filing of subsequent or untimely habeas applications, absent cause or actual innocence.” Emery v. Johnson, 139 F.3d 191, 195 (5th Cir.1997), cert. denied, — U.S. —, 119 S.Ct. 418 , 142 L.Ed.2d 339 (1998); see also Fuller v. Johnson, 158 F.3d 903, 906 (5th Cir.1998) (stating that Article 11.071, Section 5, “precludes a state court from considering the merits of claims presented in a successive habeas application unless predicate facts for a statutory exception are established”), petition for cert. denied, — U.S. —, 119 S.Ct. 1809 , 143 L.Ed.2d 1012 (1999). The comparison to Section 5 suggests that Article 11.07, Section 4, is also a procedural filing requirement.
The legislative history of Texas’s abuse-of-the-writ statute supports this interpretation. “Senator Montford, ■ the author of the bill that added § 4(a) to Article 11.07, stated on the Senate floor that the provision ‘adopts the abuse of the writ doctrine currently used in federal practice which limits an inmate to a one time application for writ of habeas corpus except, and I want to emphasize except, in exceptional *479 circumstances.’” Ex parte Torres, 943 S.W.2d 469, 473 (Tex.Crim.App.1997) (en banc) (quoting S.B. 440, April 19, 1995, Tape 1, Side 2). This statement suggests that, in enacting Section 4, the legislature intended to limit the number of successive habeas petitions. 9 The Texas legislature has established procedural rules limiting the number of successive habeas applications. Based on the legislative history, we should consider Section 4 to be a requirement for an application to be “properly filed.”
Looking to the language of the statute and the legislative history, I conclude that Texas courts would consider Article 11.07, Section 4, of the Texas Code of Criminal Procedure to be a state procedural requirement for the filing of successive petitions. See Ex parte Davis, 947 S.W.2d 216, 220 (Ct.Crim.App.1996) (en banc) (“Articles 11.07 and 11.071 both include similar restrictions on the filing of subsequent applications for writ of habeas corpus with both statutes becoming effective September 1, 1995. Both contain provisions that the merits of a subsequent application may not be considered unless the application contains sufficient facts establishing that certain conditions have been met.”). Thus, compliance with Section 4 is required for an application to be “properly filed” under the AEDPA. Considering all of a state’s procedural filing requirements, including those that may contain successive-petition requirements, is an approach that comports with comity and congressional intent. Villegas’s state habeas petition, which was dismissed under Section 4, should not be considered “properly filed,” and thus should not toll the AEDPA’s limitations period. Therefore, I would affirm the district court.
. In other words, if a state requires an applicant to file a petition in thirty days, a federal court will defer to that state requirement, in lieu of creating a federal requirement.
. Villegas cites to Article 11.07, Section 3, of the Texas Code of Criminal Procedure. See Tex.Code Crim. P. Ann. art. 11.07, § 3.
. Such statements indicate that the majority views Article 11.07, Section 4, as an inquiry into the merits of the habeas petition. The inquiry required by Section 4 is distinct from, and occurs precedent to, a consideration of the merits. Section 4(a) prohibits a court from considering the merits of a petition unless the petitioner can show either (1) cause for failure to bring the claim previously, or (2) that, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt. See Tex Code Crim. P. Ann. art. 11.07, § 4(a). The first provision is not concerned with the merits of the claim. The latter provision resembles a harmless-error analysis, and does not involve an inquiry into the merits of the claim. For this reason, it is incorrect to discuss Section 4 as if it requires an inquiry into the merits.
. In this case, the Texas legislature passed a statute that the Texas slate courts can not consider successive habeas petitions that are an abuse of the writ. It is perplexing that the majority professes to see no reason to "second-guess state legislatures’ decisions,” and yet it disregards the Texas statute.
. The majority states that "the respondents' concerns pertain to policy and are more appropriately directed to Congress and the state legislature.” The Respondent’s concerns, however, have been addressed by the Texas legislature in Article 11.07, Article 4. It is incongruent for the majority to encourage the Respondent to request change from the state legislature and then to refuse to recognize the state legislature's response to such requests.
. Texas's procedural rules for the proper filing of successive petitions are comparable to the AEDPA’s requirements for obtaining a COA. See 28 U.S.C. § 2244 (b) (requiring applicant to show cause for failing to bring the claim in a prior petition or innocence).
. Some courts considering similar procedural provisions have come to the contrary conclusion. See, e.g., Lovasz, 134 F.3d at 148-49 (explaining that Pennsylvania law allows the filing of subsequent petitions and sometimes grants relief in such proceedings, and thus the state rule regarding the granting of subsequent petitions does not affect whether a petition is “properly filed”); Souch v. Harkins, 21 F.Supp.2d 1083, 1086-87 (D.Ariz.1998) (concluding that a petition is "properly filed,” irrespective of Arizona's rule on procedural default, if the petition complies with basic state requirements regarding place and time of filing). I am unpersuaded by these cases because I believe that, in addition to Texas’s rules on the time and place for filing petitions, Texas's law on subsequent petitions affects whether an application is "properly filed.”
. Article 11.071, Section 4(a), gives the place and lime requirements for filing a habeas application. Section 4(b) states that an application filed after the filing date is presumed untimely, unless the applicant can establish good cause by showing particularized justifying circumstances. See Tex.Code Crim. P. Ann. art. 11.071, § 4(a)-(b).
. The floor discussion related solely to capital cases, however, Senator Montford had explained earlier that the subsequent writ provision applied to both capital and non-capital cases. See Ex parte Torres, 943 S.W.2d at 473 n. 6.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492306. Public record. Not legal advice.