Summary Calendar CORY EUGENE WINDLAND v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional…

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10750
Summary Calendar
CORY EUGENE WINDLAND
Petitioner-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeals from the United States District Court
for the Northern District of Texas
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
A federal habeas applicant must file his § 2254 petition within one year of
the date that his conviction becomes final, 28 U.S.C. § 2244(d)(1)(A), but the time
during which a properly filed state habeas petition is “pending” tolls that
limitations period. § 2244(d)(2). The issue here is whether this tolling period
encompasses both the day on which a state habeas petition is filed and the day
on which it is decided. The district court failed to include one of these days in
its tolling calculation, resulting in a finding that petitioner’s § 2254 petition was
filed one day after the limitations period ran. Finding that a state habeas
petition is “pending” for the purposes of tolling under § 2244(d)(2) on the day it
United States Court of Appeals
Fifth Circuit
F I L E D
August 10, 2009
Charles R. Fulbruge III
Clerk

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No. 06-10750
See TEX. R. APP. P. 68.2(a) (A petition for discretionary review “must be filed within1
30 days after either the day the court of appeals’ judgment was rendered or the day the last
timely motion for rehearing was overruled by the court of appeals.”); Roberts v. Cockrell, 319
F.3d 690, 693-94 (5th Cir. 2003) (finding a conviction final under § 2244(d)(1)(A) where the
defendant failed to seek discretionary review within thirty days of the state appellate court’s
denial of his motion for rehearing).
2
is filed through (and including) the day it is decided, we reverse the district
court’s judgment and remand for further proceedings.
In 2003, a jury convicted Petitioner Cory Eugene Windland of capital
murder and sentenced him to life in prison. A Texas state appellate court
affirmed his conviction on May 26, 2004. As Windland did not file a motion for
rehearing or seek further review in the Texas Court of Criminal Appeals, his
conviction became final thirty days later, on June 25, 2004. Windland,1
therefore, had one year from June 25, 2004, to file his § 2254 petition. Before
that year elapsed, Windland filed a state habeas petition on May 12, 2005; it was
denied on October 19, 2005. The period during which Windland’s state habeas
petition was “pending” did not count toward the one-year limitations period
under § 2254.
Windland filed the underlying § 2254 petition on Sunday, December 4,
2005, by placing it in the prison mail system. Although the district court
accounted for the tolling caused by Windland’s state habeas filing, it calculated
that tolling period at 160 days, meaning Windland’s § 2254 petition was actually
due two days earlier, on December 2, 2005. While the district court failed to
“show its work” for this calculation, its 160-day number necessarily means that
it excluded from the tolling period either the day on which Windland filed his
state habeas petition or the day on which the state court decided it.
Windland filed a timely notice of appeal, and a judge of this circuit granted
a certificate of appealability solely to address the propriety of the district court’s

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No. 06-10750
Windland’s brief also addresses the underlying merits of his constitutional claims.2
Because a certificate of appealability was not granted on those issues, we lack jurisdiction to
consider them. United States v. Kimbler, 150 F.3d 429, 431 (5th Cir. 1998).
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tolling calculation. We address that issue after resolving two preliminary2
contentions made by the government.
First, the government claims that Windland has waived the tolling issue
by failing to specifically argue in his Appellant’s brief that the proper tolling
period was 161 days, rather than 160 days. But in his brief, Windland argues
that the district court erred in dismissing his §2254 petition as time-barred; he
also contends that he is entitled to tolling during the period his state habeas
petition was pending. Additionally, the government asserts no prejudice flowing
from Windland’s purported failure to brief the issue. Indeed, the government
filed a Respondent’s brief fully addressing the issue before us. In light of the
record and the well-established precedent requiring that we construe pro se
briefs liberally, we conclude that Windland preserved the tolling issue on appeal.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Price v. Digital Equip. Corp.,
846 F.2d 1026, 1028 (5th Cir. 1988) (finding that where respondent asserted no
prejudice and fully addressed the issue, and the case involved only the
application of settled law to undisputed facts, a pro se petitioner’s failure to brief
would not be deemed abandonment of sole issue on appeal).
Second, the government contends that Windland waived de novo review
of the legal issue in this appeal by failing to object to the Magistrate Judge’s
report and recommendation on the specific basis of the 160/161 day distinction.
Again, although Windland could have been more specific, he did object to the
Magistrate’s conclusion that his § 2254 petition was time-barred; as part of that
objection, he also argued that the limitations period should have been tolled
while his state action was pending. This objection alerted the district court to
the pertinent issue in this appeal, namely that the Magistrate improperly found

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No. 06-10750
Rule 6(a)(1) provides: “Day of the Event Excluded. Exclude the day of the act, event,3
or default that begins the period.” FED. R. CIV. P. 6(a)(1).
4
Windland’s § 2254 petition time-barred due to an erroneous tolling calculation.
See United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997) (holding that to
preserve an issue, a party must object with sufficient specificity to allow the trial
court to address it). Indeed, the district court independently calculated the
number of days. We accordingly review the district court’s decision de novo. See
Prieto v. Quarterman, 456 F.3d 511, 514 (5th Cir. 2006).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides
that a federal habeas petition must be filed within one year after the petitioner’s
conviction becomes final. § 2244(d). This limitations period, however, is tolled
for the period during which a properly filed petition for state habeas relief is
“pending.” § 2244(d)(2). The issue here is whether this tolling period includes
both the date of filing and the date of disposition by the state court.
The government directs our attention to the time computation provisions
in Federal Rule of Civil Procedure 6(a), noting that we, like every other circuit,
have held that this Rule controls the calculation of the AEDPA limitations
period. See Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998).
According to the government, the same Rule should govern computation of the
AEDPA tolling period, meaning that the date on which a state habeas petition
is filed would be excluded from that period. But “Rule 6(a) is a general3
statutory rule, which may be supplanted when the statute at issue provides
more specific direction.” Id. at 201. Thus, before relying on the default
provisions in Rule 6(a), we must first look to the plain language of the provision
at issue to determine whether Congress has provided this “more specific
direction.” Id.
Unlike the AEDPA statute of limitations, which provides that the one-year
period shall “run from” the later of four alternative dates, the AEDPA tolling

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No. 06-10750
Although an unpublished opinion has no precedential value, we cite this case as an4
example of our past practice on this matter.
In so concluding, we also note our prior admonition in the context of an equitable5
tolling analysis that the AEDPA statute of limitations should not be applied “too harshly.”
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (citing Lonchar v. Thomas, 517 U.S. 314,
324 (1996)).
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provision provides specific guidance concerning the computation of time, stating
that “[t]he time during which a properly filed application for State
post-conviction [review] . . . is pending shall not be counted toward any period
of limitation under this subsection.” § 2244(d)(2) (emphasis added).
Similarly, the United States Supreme Court has noted that “[t]he
dictionary defines ‘pending’ (when used as an adjective) as ‘in continuance’ or
‘not yet decided.’” Carey v. Saffold, 536 U.S. 214, 219 (2002) (citing WEBSTER’S
THIRD NEW INT’L DICTIONARY 1669 (1993)). Additionally, the Second Circuit has
determined that “the term ‘properly filed’ fixes the date that starts the tolling of
the AEDPA statute of limitations, and the term ‘pending’ marks the end point,
when the state court ultimately decides the prisoner’s case.” Fernandez v. Artuz,
402 F.3d 111, 116 (2d Cir. 2005). While this circuit has not specifically
addressed the meaning of “pending” in this context, we have implicitly
recognized that the § 2244 limitations period is tolled beginning on the date a
defendant files his state habeas petition. See, e.g., Gray v. LeBlanc, No.
01-30022, 2001 WL 1692430, at *1 (5th Cir. Nov. 21, 2001) (unpublished)
(concluding that prior to the date the petitioner filed his state petition, 203 days
of the limitations period had passed).4
Applying the plain language of the statute, we hold that a state petition
for habeas relief is “pending” for AEDPA tolling purposes on the day it is filed
through (and including) the day it is resolved. This is because a state court can5
render judgment on the petition at any point during this period. Here, the
district court calculated the tolling period as 160 days, necessarily excluding

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No. 06-10750
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either the day it was filed or the day it was decided. Including both the day of
filing (May 12, 2005) and the day of disposition (October 19, 2005), the tolling
period is 161 days, rather than 160 days. As such, Windland had until
December 3, 2005 to timely file his § 2254 petition. December 3, 2005 was a
Saturday, so his petition became due on Monday, December 5, 2005. See FED.
R. CIV. P. 6(a)(3). Windland has certified under penalty of perjury that his
federal petition was deposited in the prison mail on Sunday, December 4, 2005.
This means that his petition was timely filed under the mailbox rule applicable
to federal filings by prisoners. See Spotville v. Cain, 149 F.3d 374, 376-78 (5th
Cir. 1998). Accordingly, the district court’s judgment is REVERSED and the
case is REMANDED for further proceedings consistent with this opinion.

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