Case: 20-30045 Document: 00516175361 Page: 1 Date Filed: 01/21/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 21, 2022
No. 20-30045 Lyle W. Cayce
Clerk
Tony Garnell Pennywell,
Petitioner—Appellant,
versus
Tim Hooper, Warden, Louisiana State Penitentiary,
Respondent—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:19-CV-1425
Before Jolly, Higginson, and Engelhardt, Circuit Judges.
E. Grady Jolly, Circuit Judge:
This court granted a certificate of appealability on the grounds that
“[r]easonable jurists would find it debatable whether Pennywell
demonstrated sufficient diligence and an extraordinary circumstance to
warrant equitable tolling.” Upon review, we conclude that Pennywell is
entitled to equitable tolling.
Case: 20-30045 Document: 00516175361 Page: 2 Date Filed: 01/21/2022
No. 20-30045
Based on the undisputed facts before us, 1 Pennywell delivered his
petition for direct review of his state conviction—which resulted in multiple
life sentences—to prison guards for mailing and, through some unknown
fault in the mailing process, the Louisiana Supreme Court never received the
petition. Once Pennywell discovered the petition had never arrived at the
Louisiana Supreme Court, he promptly refiled it. As a result of the
untimeliness caused by the mailing failure of his first petition, however, the
Louisiana Supreme Court dismissed his renewed petition for direct review as
untimely. State ex rel. Pennywell v. Pennywell,
189 So.3d 1074, 1075
(La. 2016).
This decision was the basis for all subsequent denials of Pennywell’s seeking
post-conviction relief, both in the Louisiana Supreme Court for state habeas
and in the district court for federal habeas in this case. See State v. Pennywell,
279 So.3d 908
, 908–09 (La. 2019); Pennywell v. Warden, No. 1:19-CV-1425-
P,
(W.D. La. Dec. 4, 2019) (magistrate judge’s report and recommendation)).
The failure to timely deliver the petition to the Louisiana Supreme
Court was through no fault of Pennywell, as the state district court noted.
State v. Pennywell, No. 312,478 (La. Dist. Ct. Oct. 13, 2017). Thus, by the
failure of the mail system, Pennywell was “prevented in some extraordinary
way from asserting his rights.” Felder v. Johnson,
(5th Cir. 1999)
1
Although the warden has received notice of this appeal, he has failed to respond.
The clerk’s office sent Pennywell’s certificate of appealability and the briefing schedule to
the warden. It also sent a letter notifying the warden when his response brief had not been
received by the briefing schedule’s deadline and included instructions for filing a brief out
of time. Thus, on this record, Pennywell’s allegations supporting equitable tolling are
unchallenged—that is, Pennywell timely delivered his petition to prison authorities for
mailing and the Supreme Court of Louisiana never received it.
2
Case: 20-30045 Document: 00516175361 Page: 3 Date Filed: 01/21/2022
No. 20-30045
(internal quotation marks omitted)). Further, upon discovering the defect in
the mailing of his direct petition, and in all subsequent filings, Pennywell has
diligently pursued his rights. Given these undisputed facts before us, we
conclude that Pennywell has demonstrated due diligence and an
extraordinary circumstance that justify equitable tolling in this case. See
Holland v. Florida,
(2010). Accordingly, we hold that
Pennywell’s petition before the district court is timely. The district court’s
judgment of dismissal is, therefore, REVERSED and the case is
REMANDED for further consideration.
REVERSED and REMANDED.
3
