IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20614
Summary Calendar
RICHARD KENT MILLER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-3390
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April 20, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Richard Kent Miller (Texas prisoner #637111) has applied for
a certificate of appealability (COA) to appeal the district
court’s dismissal of his 28 U.S.C. § 2254 petition as time-barred
under the one-year limitations period of 28 U.S.C. § 2244(d).
Miller sets forth several reasons why his § 2254 petition should
be considered timely, most of which center around the Texas Court
of Criminal Appeals’ eight-day delay in sending him notice that
*
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that this opinion should not be published and is not precedent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.
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his state habeas application had been denied. The gist of
Miller’s contentions is that the eight-day delay should not have
counted towards his limitations period. Miller’s contentions,
liberally construed, amount to an argument that his limitations
period should have been equitably tolled to account for the
eight-day delay.
The limitations period of § 2244(d), including the one-year
grace period, is subject to equitable tolling “in rare and
exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 810-
11 (5th Cir. 1998), petition for cert. filed, (U.S. Feb. 23,
1999)(No. 98-8209); Fields v. Johnson, 159 F.3d 914, 916 (5th
Cir. 1998). The doctrine of equitable tolling preserves a
petitioner’s claims “when strict application of the statute of
limitations would be inequitable.” Davis, 158 F.3d at 810
(internal quotations and citations omitted).
Because Miller’s conviction became final prior to the
AEDPA’s effective date of April 24, 1996, his petition was timely
if it was filed before the one-year grace period expired on April
24, 1997. See Flanagan v. Johnson, 154 F.3d 196, 199-200, 202
(5th Cir. 1998). Miller’s § 2254 petition was not filed until
October 2, 1997. The district court, however, determined that
Miller filed a state habeas application on April 18, 1997.
Miller’s state habeas application tolled the one-year grace
period six days prior to its expiration. See Fields, 159 F.3d at
916 (one-year grace period is tolled by state postconviction
proceedings pending during that period). The Texas Court of
Criminal Appeals denied Miller’s state habeas application without
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written order on September 22, 1997. Thus, Miller had six days
from that date, or until September 28, 1997, to file a timely
§ 2254 petition. September 28, however, was a Sunday, so Miller
had until September 29, 1997, to file a timely petition. See
Fed. R. Civ. P. 6(a). The record indicates that the Texas Court
of Criminal Appeals did not send out notice of its decision until
September 24, 1997, and that Miller did not receive the court’s
notice until October 2, 1997. The district court determined that
Miller filed his § 2254 petition on October 2, 1997, the same day
that he received notice that his state habeas application had
been denied. Despite his diligence, Miller missed the September
29th deadline by three days.
Given the unique circumstances of this case, Miller has
shown that the strict application of § 2244(d)’s one-year
limitations period would be inequitable and that the doctrine of
equitable tolling should therefore apply to preserve his claims.
See Davis, 158 F.3d at 810. Because Miller has shown that his
§ 2254 petition should not have been dismissed as time-barred, we
ordinarily would proceed to the merits of Miller’s habeas claims.
See Sonnier v. Johnson, 161 F.3d 941, 943-44 (5th Cir. 1998).
However, we lack jurisdiction to do so in the instant case
because the district court did not address the merits of Miller’s
claims as an alternative to its procedural holding. See Sonnier,
161 F.3d at 945-46; Whitehead v. Johnson, 157 F.3d 384, 387-88
(5th Cir. 1998). Moreover, the Respondent, in his motion to
dismiss, reserved the right to plead failure to exhaust as a
defense in the event that the district court declined to dismiss
No. 98-20614
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Miller’s petition as time-barred. If we were to address the
merits of Miller’s claims, the Respondent’s potential defense of
exhaustion would be bypassed. See Sonnier, 161 F.3d at 945.
Accordingly, we GRANT a COA on the limitations issue, VACATE the
judgment of the district court, and REMAND the case to the
district court so that the Respondent has an opportunity to
assert failure to exhaust as a potential defense. See id. at
945-46. If Miller’s case remains viable after that point, the
district court is then instructed to consider the merits of
Miller’s habeas claims. See id. at 946.
COA GRANTED; judgment VACATED and case REMANDED.