Leonard v. Deville, No. 18-30374 (5th Cir. 2020)Annotate this Case
The Fifth Circuit treated the petition for en banc rehearing as a petition for panel rehearing, granted the rehearing, withdrew its prior opinion, and substituted the following opinion.
Petitioner appealed the district court's dismissal of his 28 U.S.C. 2254 petition as time-barred. Petitioner was then granted a certificate of appealability (COA) to consider whether he was entitled to statutory tolling.
The court held that 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—his initial application therefore remains "pending" under the tolling provision in section 2244(d)(2). The court explained that its holding was supported by circuit precedent and the Supreme Court's 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. In this case, petitioner was entitled to statutory tolling and his petition was therefore not time-barred.
This opinion or order relates to an opinion or order originally issued on February 3, 2020.