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Umana v. Davis

United States Court of Appeals, Fifth Circuit

January 7, 2020

PEDRO ERNESTO UMANA, Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

          Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17-CV-01421

          Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.

          PER CURIAM

         The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), rehearing en banc is DENIED.

         In the poll, 6 judges voted in favor of rehearing en banc, and 10 voted against. Chief Judge Owen and Judges Jones, Smith, Willett, Ho, and Oldham voted in favor. Judges Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Duncan, and Engelhardt voted against.

          James E. Graves, Jr. United States Circuit Judge

          JERRY E. SMITH, Circuit Judge, dissenting from the denial of rehearing en banc:

         Until now, this court has never granted equitable tolling where a prisoner waited as long as Umana did to file his state habeas corpus petition. This remarkable result turns the concept of equitable tolling on its head. District Judge Keith Ellison did everything he was supposed to do in conscientiously dismissing on limitations, yet the panel accuses him of abuse. And in denying rehearing en banc, the active judges, by a strong 10-6 margin, show little concern.

         Although it invokes Hardy v. Quarterman, 577 F.3d 596 (5th Cir. 2009) (per curiam), the panel never mentions Hardy's salient admonition that equitable tolling is to be granted "only in rare and exceptional circumstances." Id. at 598 (quotation marks removed). The panel likewise conveniently avoids Hardy's requirement that "a petitioner must show that he pursued the habeas corpus relief process with diligence and alacrity both before and after receiving notification." Id. (cleaned up) I respectfully dissent.

         I. The Executive Summary

         It is more difficult to muster enough votes to rehear a case en banc where, as here, the opinion is unpublished and the state, for whatever reason, moves neither for panel nor en banc rehearing.[1] This matter is still enbanc-worthy because of the confusing signal the panel sends to the district judges. Even if, arguendo, the members of the panel would have decided differently from Judge Ellison had they been in his shoes, it is way over the top and beyond reasonable imagination to say that Judge Ellison abused the wide discretion that we are supposed to accord our district judges on this matter of purely equitable discretion.

         In his comprehensive six-page Memorandum Opinion and Order entered almost two years ago, Judge Ellison addressed this case with care and deliberation. He noted that "[t]he federal limitation period may be tolled equitably, but only when the petitioner shows that he has been pursuing his rights diligently, and that some extraordinary circumstance stood in his way and prevented timely filing" (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). He enunciated the proper test in explaining that "a petitioner must show that he pursued the habeas corpus process with diligence and alacrity both before and after receiving an untimely notification" (citing Hardy, 577 F.3d at 598).

         In examining the 425-day delay in Umana's filing after discretionary review was refused, Judge Ellison meticulously reviewed every one of Umana's excuses, such as the fact that he is pro se and unfamiliar with the law and that there were intermittent lockdowns and staff shortages. In response, Judge Ellison judiciously reasoned that Umana's conclusional excuses didn't come close to explaining why it took 425 days and that Umana's pro se status, without more, couldn't take him off the hook from his lack of diligence (citing Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999) (per curiam)).

         These are precisely the sort of evaluations we entrust to district judges, especially those with Judge Ellison's more than twenty years' experience. The panel even admits that "equitable tolling does not lend itself to bright-line rules" and that "we must consider equitable tolling on a case-by-case basis." Yet this panel tars Judge Ellison with abuse of discretion for making an equitable judgment based on these particular facts and in full accord with controlling law.

         The panel opinion is long on vitriol aimed at what it calls "the govern-ment"[2] but short on reference to established, published, binding Fifth Circuit precedent. Even on the basis of the law in place when this matter was briefed, [3]the panel was wrong. More disturbing, however, is its refusal, even now, to budge in light of Jackson v. Davis, 933 F.3d 408 (5th Cir. Aug. 2, 2019) (Smith, J.), of which the panel was presumably unaware when it issued its opinion on October 11, 2019.[4] The panel declines to alter its opinion to recognize that Jackson even exists.

         II. Into the Weeds: The ...


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