IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-10394
Summary Calendar
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CALVIN BURNETT COLEMAN,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director, Texas Department
of Criminal Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CV-2982-X
_________________________________________________________________
August 3, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
In this case, Coleman appeals a district court ruling
dismissing one habeas petition as time-barred and ruling against
Coleman on the merits on a second habeas petition. Finding no
error on the part of the district court, we affirm.
I
On November 15, 1989, Calvin Burnett Coleman, now a Texas
inmate, pled guilty to two separate indictments. The first
indictment charged Coleman with possession of cocaine on
February 7, 1989. The second indictment charged him with
*
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this opinion should not be published and is not precedent except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.
possession of cocaine on April 4, 1989. The trial court imposed a
five-year probation term for the first offense. In 1992, however,
the probation term was revoked and Coleman was sentenced to ten
years in prison. Coleman apparently did not appeal.
In 1996, Coleman filed two state actions for postconviction
relief, attacking his convictions as to both 1989 guilty pleas.
The application challenging the conviction on the February 7 charge
was stamped “filed” on October 24, 1996, while the application
attacking the conviction on the April 4 charge was stamped “filed”
on September 12, 1996. Both applications were purportedly signed
by Coleman on September 4, 1996. In both applications, Coleman
contended, inter alia, that his guilty pleas were invalid because
he received ineffective assistance of counsel in several respects.
In both cases, the trial court recommended that Coleman’s
applications be denied on the merits. On May 28, 1997, the Texas
Court of Criminal Appeals denied both applications without written
orders and without hearings.
On December 9, 1997, Coleman filed this § 2254 habeas petition
in district court, challenging both 1989 guilty pleas. The
petition was purportedly executed on December 3, 1997, but no
certificate of service was attached. Coleman contended that the
pleas were involuntarily entered due to ineffective assistance of
counsel. The respondent contended that Coleman’s petition was
time-barred by the one-year limitations period prescribed in 28
U.S.C. § 2244(d), even if Coleman were granted a one-year grace
2
period from April 24, 1996, effective date of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”).
The magistrate judge recommended that Coleman’s petition
attacking the conviction for the February 7 offense be dismissed as
time-barred. The magistrate judge reasoned that, even if the
limitations period were deemed tolled by the pendency of Coleman’s
state postconviction application between October 24, 1996 (the date
that his application was denied) and May 28, 1997 (the date it was
denied), more than one year had passed between the AEDPA’s
effective date and the date Coleman filed his § 2254 petition.
Coleman submitted with his objections to the recommendation an
affidavit in which he attested that, although his state application
challenging the conviction in the February case was not stamped
“filed” until October 24, 1996, it was in fact submitted for
mailing to the state clerk at the same time as his other
application, on September 4, 1996. The district court overruled
objections by both parties and dismissed Coleman’s petition with
regard to the conviction in the instant case as time-barred. The
court subsequently denied Coleman’s petition on the merits with
respect to his guilty plea on the April 4 charge. Coleman timely
filed a notice of appeal.
On November 3, 1998, this court granted Coleman a COA on the
issue of whether his petition challenging the conviction in the
instant case was time-barred. The court called specific attention
to Coleman’s assertions that his submission of his state
3
postconviction application for mailing on September 4, 1996, should
have tolled the limitations period for filing his § 2254 petition
from that date, rather than from October 24, 1996, the date the
application was stamped “filed” by the Texas Court.
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III
Coleman raises two separate issues. With respect to the
habeas petition that the district court held was time-barred,
Coleman argues that, because he mailed his state habeas application
approximately two months before it was filed, he should be entitled
to an extension of the limitations period under § 2244(d)(1). The
second issue raised by Coleman is whether the district court erred
in ruling against him on the merits with respect to his second
habeas petition. We address each argument in turn.
A
Coleman contends that the district court erred in dismissing
his challenge to his conviction in the instant case as being barred
by the one-year limitations period. He again asserts that he
signed his state postconviction action challenging that conviction
on September 4, 1996. Coleman contends that, under the “mailbox
rule” of Houston v. Lack, 487 U.S. 266 (1988), his state
application should have been deemed filed on that date rather than
on October 24, 1996, the date it was stamped “filed.” Anticipating
that the respondent will contend that only state rules should
govern the filing dates of state applications, Coleman contends
that, under Tex.R.Civ.P. 5, such filing is governed by a “legible
postmark,” which in his own case shows a filing date of
September 5, 1996. For the first time, Coleman also maintains that
the tolling period should be similarly extended on the opposite
side of the period during which his state application was pending:
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he asserts that, although the Texas Court of Criminal Appeals
denied his state postconviction application on May 28, 1997, he did
not receive notice of the denial until June 10, 1997. He argues
that these days should be added to the tolling period as well, as
such delay is “beyond a prisoner’s control.”
Under the amended § 2244(d),
(1) [a] 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from 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;
(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1). Moreover, “[t]he time during which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period of limitation
under this subsection.” § 2244(d)(2).
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A habeas petitioner whose claims otherwise would have been
time-barred because the limitations period would have expired
before the effective date of AEDPA have a grace period until
April 24, 1997, to file their habeas petitions. Flanagan v.
Johnson, 154 F.3d 196, 201-02 (5th Cir. 1998). We apply the
statutory tolling provision of § 2244(d)(2) to filings that were
not timely under the grace period. See Fields v. Johnson, 159 F.3d
914, 916 (5th Cir. 1998).
Under the “mailbox rule,” a prisoner’s federal habeas corpus
petition is deemed filed when he delivers the petition to prison
officials for mailing to the district court. Spotville v. Cain,
149 F.3d 374, 376-78 (5th Cir. 1998) (relying on Houston v. Lack
and its progeny). Under Spotville, Coleman’s § 2254 petition was
“filed” sometime between December 3, 1997, when he signed the
petition, and December 9, 1997, when it was received in district
court. Accordingly, it was filed approximately 223 to 228 days
beyond April 24, 1997, the date that this court has held to be the
final day of the one-year grace period. The question before the
district court was whether the pendency of the Coleman’s state
application tolled the limitations period for a sufficient time to
render his § 2254 petition timely.
Both parties’ contentions are based on the “mailbox rule”
promulgated by the Supreme Court in Houston v. Lack. Houston
itself is concerned only with the 30-day deadline for filing a
notice of appeal in Fed.R.App.P. 4(a)(1); a notice of appeal
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submitted by a pro se prisoner is deemed filed as of the moment it
is delivered to prison officials for mailing to the clerk. See
Houston, 487 U.S. at 268-69. We have since extended the mailbox
rule to the filing deadlines for various documents by pro se
litigants under specific federal rules and statutes. See, e.g.,
Cooper v. Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995) (mailbox
rule applies to filing of civil complaint under Fed.R.Civ.P. 5(e));
Thompson v. Raspberry, 993 F.2d 513, 515 (5th Cir. 1993) (filing of
written objections to magistrate judge’s recommendation under
Fed.R.Civ.P. 72(b)); Spotville, 149 F.3d at 378 (for purpose of
determining whether the AEDPA applies, habeas petition is deemed
filed when it is delivered to prison authorities for mailing).
Coleman asks us to extend Houston far beyond these holdings: He
asserts that, in the context of addressing whether the pendency of
a state postconviction application has tolled the one-year
limitations period of § 2244(d)(2), a federal district should apply
the “mailbox rule” to filing of postconviction applications in
state court. Unlike this court’s prior extensions of Houston, such
a ruling would require us to interpret state rules of filing and to
address the filing systems of state courts.1
We decline to extend the mailbox rule to the determination of
filing dates for state habeas applications. Instead, when a
prisoner asserts that his ability to file a federal habeas petition
1
As suggested by the respondent, postconviction proceedings in
Texas are governed by criminal rule, see Tex.R.Crim.P. art. 11.07,
not the civil rule cited by Coleman.
8
has been affected by a state proceeding, we will examine the facts
to determine whether the prisoner is entitled to equitable tolling
under § 2244(d)(1).
In this case, Coleman’s pro se brief is entitled to liberal
construction. Humphrey v. Cain, 120 F.3d 526, 530 n.2 (5th Cir.
1997). We may therefore liberally construe Coleman’s Houston v.
Lack argument to be a contention that his submission for mailing of
his application attacking the conviction in the February case on
September 4, 1996, entitles him to equitable toling of the
limitation period of § 2244(d)(1). The one-year limitations
provision “does not operate as a jurisdictional bar and can, in
appropriate exceptional circumstances, be equitably tolled.” Davis
v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), cert. denied, 119
S.Ct. 1474 (1999).
The district court in Davis had granted a death row habeas
petitioner several extensions between February 1997 and May 1998 to
file his § 2254 petition, but then denied the petition as untimely.
See id. at 808. Without formulating specific requirements for
determining whether equitable tolling principles should apply in
the § 2244(d) context, this court concluded that the petitioner in
his COA application had made a credible showing that the district
court erred in dismissing his petition as untimely. Id. at 812.
Davis thus did not involve circumstances like those in Coleman’s
case, in which Coleman essentially contends that delays in the
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processing of his state court postconviction application prevented
him from complying with the one-year limitations period.
“The doctrine of equitable tolling preserves a plaintiff’s
claims when strict application of the statute of limitations would
be inequitable.” Davis, 158 F.3d at 810 (citation and internal
quotation marks omitted). “Equitable tolling applies principally
where the plaintiff is actively misled by the defendant about the
cause of action or is prevented in some extraordinary way from
asserting his rights.” Rashidi v. American Presidential Lines, 96
F.3d 124, 128 (5th Cir. 1996). A “‘garden variety claim of
excusable neglect’” does not support equitable tolling. Id.
(citation omitted).
If Coleman indeed deposited his state application with prison
officials for mailing on September 4, 1996, as he asserts, and he
were to be granted equitable tolling from that date until the date
it was actually stamped “filed,” the pendence of that application
between September 4, 1996, and May 28, 1997, would have tolled the
one-year limitations period for 266 days. This would have been
more than sufficient to place the § 2254 claims within the one-year
limitations period of § 2244(d)(1).
Documents attached by Coleman to his reply to the respondent’s
answer suggest that he did mail both state applications on
September 4 or 5, 1996. Those documents appear to support
Coleman’s contention that he mailed both applications in the same
envelope, but that the state clerk mistakenly filed them together
10
and separately filed the application concerning the instant
conviction only after Coleman contacted the clerk about the error
approximately one month later. The respondent, the magistrate
judge, and the district court failed to address any of these
contentions or documents.
We nevertheless conclude, however, that Coleman is not
entitled to equitable tolling. In order for equitable tolling to
apply, the applicant must diligently pursue his § 2254 relief. In
this case, Coleman did not file his § 2254 petition until
approximately six months after learning of the denial of his state
postconviction application. As this court has noted, “equity is
not intended for those who sleep on their rights.” See Fisher v.
Johnson, 174 F.3d 710 (5th Cir. 1999) (citing Covey v. Arkansas
River Co., 865 F.2d 660, 662 (5th Cir. 1989)). Coleman should have
attempted to expediently file his federal habeas petition upon
receiving notice that his state petition had been denied. Because
Coleman does not explain the six-month delay between being notified
about his state application and filing his federal petition, we
hold that his circumstance is not extraordinary enough to qualify
for equitable tolling under § 2244(d)(1).
B
In his appellate brief, Coleman urges this court to reconsider
its denial of his COA application with respect to his challenge to
the April 4 charge. He asserts that the court erred in determining
that his ineffective assistance of counsel claims regarding that
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conviction were not adequate to deserve encouragement to proceed
further. Coleman has presented nothing in his request for
reconsideration that would alter the ruling on the COA application.
We therefore deny Coleman’s request for reconsideration.
III
For the foregoing reasons, we AFFIRM the ruling of the
district court dismissing Coleman’s habeas petition with respect to
the February 7 charge as time-barred. We further AFFIRM the
district court’s ruling on the merits with respect to the April 4
charge.
A F F I R M E D.
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