Appeal from the United States District Court for the Western District of Louisiana.
Larry Thomas, Jr., Petitioner - Appellant, Pro se, Homer, LA.
For JERRY GOODWIN, Warden, David Wade Correctional Center, Respondent - Appellee: Suzanne Morelock Williams, Assistant District Attorney, District Attorney's Office for the 1st JDC - Parish of Caddo, Shreveport, LA.
Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Louisiana state prisoner Larry Thomas, Jr. appeals the dismissal of his 28 U.S.C. § 2254 petition as untimely. For the reasons that follow, we AFFIRM.
FACTS AND PROCEDURAL HISTORY
Thomas was convicted of armed robbery by a jury in 2006 and sentenced to fifty years imprisonment. On direct appeal, the Louisiana Second Circuit Court of Appeal affirmed his conviction on August 15, 2007. State v. Thomas, 42,322, p. 10 (La.App. 2 Cir. 8/15/07); 962 So.2d 1119, 1126. Pursuant to Louisiana Supreme Court Rule X, § 5(a), Thomas had thirty days to file a direct review writ application with the Louisiana Supreme Court. Thomas alleges that he filed an application on August 30, 2007, within the time for doing so. However, on November 20, 2007, the Louisiana Supreme Court's Central Staff sent Thomas a form letter informing him that his " papers" were being returned to him " unfiled."  The letter stated: " We cannot evaluate your complaints unless you furnish us with the required documentation . . . ." By the date of that letter, the thirty-day window for filing a direct review writ application had expired.
On January 8, 2008, Thomas sent documents to the Louisiana Supreme Court, which were received, filed, and docketed by the court on February 12, 2008. On October 24, 2008, the Louisiana Supreme Court denied Thomas's writ application in a one-word denial. State ex rel. Thomas v. State, 2008-0316 (La. 10/24/08); 992 So.2d 1031, 1032. Thomas subsequently applied for state post-conviction relief, which was
unsuccessful. Thomas then filed a § 2254 application in the United States District Court, which was postmarked August 16, 2012. The magistrate judge recommended that Thomas's application be dismissed as time-barred, and the district court agreed. The district court noted that the timeliness determination hinged on " whether Thomas's writ application dated August 30, 2007, and purportedly mailed on September 4, 2007, was a timely petition for direct review under [Louisiana] Supreme Court Rule X despite being returned unfiled." The district court emphasized that as of November 20, 2007, when Central Staff sent Thomas the letter, " Thomas did not have a properly filed pleading being considered by the Louisiana Supreme Court." The district court determined that Thomas's conviction became final on the last day that Thomas could have timely petitioned the Louisiana Supreme Court for further direct review and that the one-year limitations period, under § 2244(d)(1)(A), expired one year later. The district court also determined that Thomas had not demonstrated that he was entitled to equitable tolling.
Thomas filed a timely notice of appeal and moved for a certificate of appealability (" COA" ), which the district court denied. Thomas argued, and still argues, that his August 2007 writ application, which was returned as unfiled, should be considered a timely-filed writ application, and, thus, his conviction did not become final until after the Louisiana Supreme Court denied that application. Thomas also argues that the Central Staff letter should be construed as having given him an extension of time to file his direct review writ application. This court subsequently granted Thomas a COA " on the issue whether the district court erred in determining the date upon which the one-year limitations period commenced under § 2244(d)(1)(A)." The court also instructed the ...