Rogers v. Michaels

*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this opinion should not be published and is not precedent except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 11, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-30581
Summary Calendar
LIGE ROGERS,
Petitioner-Appellant,
versus
VENETIA T. MICHAELS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CV-223
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Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Lige Rogers, Louisiana prisoner # 121856, was convicted by a
jury of distribution of heroin and sentenced to life imprisonment.
The district court dismissed his 28 U.S.C. § 2254 petition as
barred by the applicable one-year statute of limitations. This
court granted a COA on the time-bar issue. The defendant has not
filed a brief. For the following reasons, we vacate the district
court’s judgment and remand for further development of the record.
Under 28 U.S.C. § 2244(d), a one-year period of limitation
applies to § 2254 petitions. “The limitation period shall run from

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the latest of--(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for
seeking such review. . . .” § 2244(d)(1)(A). State prisoners
whose judgments became final prior to the April 24, 1996, enactment
date of AEDPA are afforded a one-year grace period, meaning that
their petition must have been filed on or before April 24, 1997.
Flanagan v. Johnson, 154 F.3d 196, 199-200 (5th Cir. 1998).
However, the one-year period is tolled for any “time during which
a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment . . .
[was] pending.” § 2244(d)(2). Rogers’s conviction and sentence
were affirmed by the state appellate court on April 13, 1995.
Rogers did not seek review in the Louisiana Supreme Court.
Rogers’s state postconviction application, filed on September 18,
1995, and subsequent motion for a new trial, were both denied on
January 5, 1999. Thus, the one-year period was tolled until at
least that time. The district court concluded that it was tolled
an additional 30 days, the time to file a supervisory writ
application in the Louisiana Court of Appeal. LA. UNIFORM APP. R. 4-
3 (West 1999).
Rogers filed a letter, construed as a supervisory writ
application, which was deemed filed on April 7, 1999, and denied on
April 26, 1999. At some undetermined point, Rogers obtained an
oral extension of time to seek supervisory writs. He also later

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filed a motion on July 7, 1999, seeking an extension of time. He
later filed two supervisory writ applications, which were denied on
the merits. His final writ application to the Louisiana Supreme
Court was denied on November 14, 2003.
The district court concluded that Roger’s written motion for
an extension of time in July 1999 did not toll the one-year period
because it was not filed within the 30-day period for seeking a
supervisory writ. The court also counted the period from February
5, 1999, to April 7, 1999, as untolled. However, it is clear that
Rogers obtained an oral extension at some point and it appears that
the extension was of indefinite duration. If that oral extension
was within the 30-day period, then the applications may have been
properly filed and pending. See Grillette v. Warden, Winn Corr.
Ctr., 372 F.3d 765, 773 (5th Cir. 2004); Dixon v. Cain, 316 F.3d
553, 555 (5th Cir. 2003); Melancon v. Kaylo, 259 F.3d 401, 404 (5th
Cir. 2001). Further, both Rogers’s state supervisory writ
applications were addressed on the merits; neither was rejected as
untimely. However, the record is not complete to determine when
the oral extension of time was granted, the length of the
extension, or to which of Rogers’s supervisory writ applications it
applied. Thus, its effect on the one-year limitations period
cannot be ascertained.

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For the foregoing reasons, we VACATE the judgment of the
district court and REMAND this matter for further development of
the record on the timing and effect of the oral extension of time.

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