REVISED March 6, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-21050
____________________
LESLIE PARNELL FELDER
Petitioner - Appellant
v.
GARY L JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
February 9, 2000
Before KING, Chief Judge, and REYNALDO G. GARZA and EMILIO M.
GARZA, Circuit Judges.
KING, Chief Judge:
Petitioner Leslie Parnell Felder appeals from the district
court’s dismissal of his 28 U.S.C. § 2254 petition, arguing that
the court erred in concluding his petition was time-barred. He
argues that his circumstances warrant equitable tolling. Those
circumstances include (1) his incarceration before AEDPA’s
effective date; (2) his litigating pro se; (3) his claiming that
1
he is innocent of the crime for which he was convicted; and (4)
his alleged unawareness of AEDPA’s requirements (as judicially
interpreted) due to inadequacies of his prison’s library, which
he claims made the law’s text inaccessible throughout his one-
year grace period. Because we find these circumstances to be
clearly insufficient to warrant equitable tolling, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
Having been initially charged with capital murder, Leslie
Parnell Felder (“Felder”) was sentenced in December 1987 to life
in prison after pleading guilty to aggravated robbery. Felder
did not directly appeal his conviction and sentence. He
subsequently filed applications for state habeas relief on
January 11, 1993, January 13, 1995, and February 11, 1997. The
first two applications were denied on the merits on March 31,
1993 and on April 10, 1996. The third was dismissed on April 30,
1997 for abuse of the writ.
Felder filed the instant § 2254 petition on July 29, 1997.
On October 27, Respondent filed a motion to dismiss the petition
as time-barred under the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214 (1996). In his response, Felder claimed that he had not
been aware of AEDPA’s limitations period until after he received
2
Respondent’s motion to dismiss.1
The district court granted Respondent’s motion to dismiss
the petition as time-barred under § 2244(d). It correctly noted
that the limitations period imposed by AEDPA became effective on
April 24, 1996. See 28 U.S.C. § 2244(d)(1) (1999) (providing
one-year period after state court judgment becomes final to file
federal habeas petition, subject to certain exceptions).2 We
have granted petitioners whose convictions became final before
that effective date a one-year grace period, requiring them to
file their § 2254 applications by April 24, 1997. See Flanagan
v. Johnson, 154 F.3d 196, 200 n.2 (5th Cir. 1998); United States
v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998) (announcing one-
year grace period in context of § 2255 petitions). The district
court noted that Felder’s application was filed ninety-nine days
after the end of his grace period. Felder’s third state
application, which was dismissed for abuse of the writ, was
1
Felder, proceeding pro se, did not specifically state in
his Response to Respondent’s Motion to Dismiss that he was
unaware of AEDPA because the Eastham Unit law library did not
receive a copy of AEDPA prior to his filing his federal petition.
However, Felder refers in his attached affidavit to deficiencies
of the prison law library. He also refers in his Response to
affidavits attached to his motion requesting counsel. In those
affidavits, prisoners Johnny J.E. Meadows and Harold T. Tarter
attest to library inadequacies. Thus, the claim that he was
unaware of AEDPA because of library inadequacies is implicit in
Felder’s Response. Felder also argued that application of
AEDPA’s limitations period to his case was unconstitutional.
2
Prior to AEDPA, there was no statute of limitations on
federal habeas claims. See Flanagan v. Johnson, 154 F.3d 196,
198 (5th Cir. 1998).
3
pending for seventy-eight days. Even if this petition was deemed
“properly filed” under § 2244(d)(2), and therefore tolled the
statute of limitations during its pendency, Felder’s § 2254
petition was filed late.3
Felder filed a motion for reconsideration of the dismissal.
In that motion, Felder restated his argument that AEDPA’s
limitations period was unconstitutional as applied, and also
alleged that his case fell under § 2244(d)(1)(B). Felder again
referred to the Tarter and Meadows affidavits and claimed to have
shown that AEDPA was not available to him until at least
September 1997 – after the expiration of his limitations period.
On July 23, 1998, the district court “reluctantly” denied
Felder’s motion for reconsideration. It “interpret[ed] the
applicable authorities” to allow only the one-year grace period,
citing Flores.4 However, the district court concluded that “the
application of the grace period under Flores, supra, is a matter
debatable among jurists of reason.” Construing the motion for
reconsideration as a request for a Certificate of Appealability
(“COA”), the district court granted a COA as to whether Felder’s
petition “may be deemed timely filed under AEDPA, under
3
We have since held that a Texas state habeas petition
dismissed for abuse of the writ is “properly filed” under
§ 2244(d)(2) and therefore tolls the statute of limitations in
§ 2244(d)(1). See Villegas v. Johnson, 184 F.3d 467 (5th Cir.
1999).
4
Flanagan, issued on September 21, 1998, was not yet
available.
4
circumstances consisting of the following”: Felder (1) was
incarcerated before AEDPA’s effective date; (2) is litigating pro
se; (3) claims he is innocent of the crime for which he was
convicted; (4) claims that he was unaware of AEDPA’s requirements
(as judicially interpreted), and (5) claims that he lacked access
to the law’s text during his one-year grace period.
II. DISCUSSION
In his appellate reply brief, Felder specifically contends
that equitable tolling of AEDPA’s statute of limitations is
warranted under the circumstances discussed by the district
court.5 None of the district court’s orders in this case, nor
any of Felder’s prior filings, addressed equitable tolling. We
5
Respondent argues that because Felder did not address in
his initial brief the issue of whether his lack of knowledge of
AEDPA’s requirements warranted equitable tolling, he was waived
the issue. See, e.g., DSC Communications Corp. v. Next Level
Communications, 107 F.3d 322, 326 n.2 (5th Cir. 1997) (“[A] party
who fails to raise an issue in its initial brief waives the right
to review of that issue.”). In his initial appellate brief,
Felder stated the issue on which a COA was granted, “rest[ed] his
challenge” to the adequacy of the law library on the Tarter and
Meadows affidavits, and explicitly linked his ignorance of
AEDPA’s requirements to the library’s inadequacies. He did not,
however, specifically state that the statute of limitations
should be equitably tolled. Instead, he cited to Easter v.
Endell, 37 F.3d 1343 (8th Cir. 1994), a case involving the
question of whether it was appropriate for the court to exercise
its “equitable power to look beyond a state procedural bar and
proceed to the merits of a habeas corpus petition.” Id. at 1345.
Given Felder’s statements in his initial brief, and considering,
as we must, his pro se status, we do not consider the issue of
whether Felder’s lack of notice warrants equitable tolling
waived.
5
note that the court did not have the benefit of our opinion in
Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998), cert. denied, 119
S. Ct. 1474 (1999).6
In Davis, we held, as a matter of first impression, that the
AEDPA one-year limitations period was a statute of limitations,
not a bar to federal jurisdiction. See id. at 807. As a statute
of limitations, it could be equitably tolled, albeit only in
“rare and exceptional circumstances.”7 Id. at 811; see also
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting
that courts must “examine each case on its facts to determine
whether it presents sufficiently ‘rare and exceptional
circumstances’ to justify equitable tolling” (quoting Davis, 158
F.3d at 811)). We have since provided additional insight into
the types of circumstances that may be seen as rare and
exceptional. In Coleman v. Johnson, 184 F.3d 398 (5th Cir.
1999), for example, we stated that “‘[e]quitable 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.’” Id. at 402
6
The district court’s reconsideration order was issued on
July 23, 1998. Davis was issued on October 21, 1998.
7
In Davis, the petitioner’s filing was well after the
grace period allowed by Flanagan. In holding that § 2244(d)(1)
was a statute of limitations that could be equitably tolled,
Davis did not distinguish between the one-year AEDPA limitations
period and the one-year Flanagan grace period granted to
prisoners, like Felder, whose convictions became final before
AEDPA’s effective date. See 158 F.3d at 811.
6
(quoting Rashidi v. American President Lines, 96 F.3d 124, 128
(5th Cir. 1996)). It is undisputed that, if equitable tolling
for at least twenty-one days of Felder’s one-year grace period is
unwarranted, Felder’s petition must be dismissed as untimely.
In light of Davis and our other jurisprudence, the
circumstances enumerated by the district court in granting a COA
are clearly insufficient to warrant equitable tolling. We have
held that a petitioner’s incarceration prior to AEDPA’s passage
does not present an extraordinary circumstance warranting
equitable tolling. See Fisher, 174 F.3d at 714 (noting that
AEDPA’s one–year grace period affected hundreds of prisoners,
none of whom learned of it on its effective date). Likewise,
proceeding pro se is not a “rare and exceptional” circumstance
because it is typical of those bringing a § 2254 claim. Cf.
United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993)
(holding pro se status, illiteracy, deafness, and lack of legal
training are not external factors excusing abuse of the writ);
Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir.
1991) (holding equitable tolling of limitations within the Age
Discrimination in Employment Act not warranted by plaintiff’s
unfamiliarity with legal process, his lack of representation, or
his ignorance of his legal rights). Felder’s actual innocence
claim also does not constitute a “rare and exceptional”
circumstance, given that many prisoners maintain they are
7
innocent.8
Felder has linked the fourth and fifth circumstances,
arguing that he did not have notice of AEDPA’s requirements due
to inadequacies of his prison’s law library. He contends that
without notice of AEDPA’s requirements, he was denied the
opportunity to timely file his petition. Because Felder clearly
filed his petition before becoming aware of AEDPA’s requirements,
his unawareness of the law arguably has not “prevented in some
extraordinary way [his] asserting his rights.” Coleman, 184 F.3d
at 402.9
In Fisher, we rejected a petitioner’s claim that he was
entitled to equitable tolling for the forty-three day period
between AEDPA’s effective date and the date on which he received
actual notice of AEDPA. See 174 F.3d at 714. We gave a number
of reasons for our decision, including the fact that “ignorance
of the law, even for an incarcerated pro se petitioner, generally
does not excuse prompt filing.” Id. To support this reasoning,
8
Felder has not made a showing of actual innocence, as the
district court noted.
9
His filing his petition prior to September 1997, the time
he alleges he had access to AEDPA, would also appear to make
§ 2244(d)(1)(B) unavailable to Felder. Under § 2244(d)(1)(B),
the limitation period begins to run on “the date on which the
impediment to filing an application created by State action in
violation of the Constitution or laws of the United State is
removed, if the applicant was prevented from filing by such State
action.” Cf. United States ex rel. Morgan v. Gilmore, 26
F.Supp.2d 1035, 1039 (N.D. Ill. 1998) (“Even if the court assumes
that the lock-down constitutes state action, it did not prevent
Morgan from filing ‘an application.’”).
8
we cited prior decisions of this court holding that mere
ignorance of the law or lack of knowledge of filing deadlines
does not justify equitable tolling or other exceptions to a law’s
requirements. See id. at 714 n.13 (citing Saahir v. Collins, 956
F.2d 115, 118-19 (5th Cir. 1992) (holding that neither prisoner’s
pro se status nor ignorance of the law constitutes “cause” for
failing to include a claim in a prior petition), and Barrow v.
New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir. 1991)
(holding that “lack of knowledge of the filing deadlines” does
not justify equitable tolling)). We could have just as easily
cited to other cases for the same “ignorance of the law is no
excuse” proposition. See, e.g., Quina v. Owens-Corning Fiberglas
Corp., 575 F.2d 1115, 1118 (5th Cir. 1978); Howard v. Sun Oil
Co., 404 F.2d 596, 601 (5th Cir. 1968).
Other language in Fisher would appear to lend support to
Felder’s argument that his circumstances warrant equitable
tolling. See Fisher, 174 F.3d at 715 (“In the right
circumstances, a delay in receiving information might call for
equitable tolling – such as if the prison did not obtain copies
of AEDPA for months and months . . . .”). This language is
dicta, however, and we need not follow it. Moreover, in addition
to our long line of cases holding that mere ignorance of the law
or of statutes of limitations is insufficient to warrant
9
tolling,10 we have Congress’ language in § 2244(d) to support our
similar conclusion in this case.
In defining the one-year statute of limitations in
§ 2244(d), Congress explicitly laid out three circumstances under
which the statute of limitations would begin to run after the
date on which the prisoner’s judgment became final. See
§§ 2244(d)(1)(B),(C),(D). We have previously noted that Congress
did not provide for tolling based on a failure to receive timely
notice. See Fisher, 174 F.3d at 714 (“Congress knew AEDPA would
affect incarcerated individuals with limited access to outside
information, yet it failed to provide any tolling based on
possible delays in notice.”). Although in Davis we in effect
suggested that circumstances beyond those indicated by Congress
may warrant equitable tolling, we must nonetheless be mindful of
10
Our conclusion that Felder’s unawareness of AEDPA’s
requirements is insufficient to warrant tolling is also
consistent with the determinations of other courts that have
faced similar claims. See, e.g., Miller v. Marr, 141 F.3d 976,
978 (10th Cir.) (holding equitable tolling not warranted to
prisoner claiming he lacked access to federal statutes and case
law, and only learned of AEDPA’s time limitations sometime after
April 29, 1997), cert. denied, 119 S. Ct. 210 (1998); United
States v. Griffin, 58 F.Supp.2d 863, 869 (N.D. Ill. 1999)
(declining to toll because of petitioner’s lack of awareness of
AEDPA’s enactment until he entered the federal prison system in
1997, and stating that “such a run-of-the-mill claim of ignorance
of the law is insufficient to warrant equitable tolling,” citing
our decision in Fisher in support); Bilodeau v. Angelone, 39
F.Supp.2d 652, 659 n.1 (E.D. Va.) (concluding that ignorance of
the law does not warrant tolling), appeal dismissed by 182 F.3d
906 (4th Cir. 1999); Fadayiro v. United States, 30 F.Supp.2d
772, 781 (D.N.J. 1998) (“That Fadayiro may have been unaware of
the new limitations period of Section 2255 also is not sufficient
to toll the statute of limitations.”).
10
the framework Congress established in § 2244(d). Cf. Fisher, 174
F.3d at 713 (noting that “the Supreme Court has expressed
deference to the rules that Congress fashioned concerning
habeas”). Viewing §§ 2244(d)(1)(B),(C), and (D) as providing
Congress’ description of “extraordinary circumstances,” cf.
Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (noting the
existence of § 2244(d)(1)(D), which is described as an
“equitable-tolling provision,” and of other express tolling
provisions of § 2244(d)), suggests that we should not toll unless
the circumstances presented in a particular case are on a par
with the conditions listed in § 2244(d). None of Felder’s
circumstances, and particularly not his ignorance of the law, can
be said to be on a par with those conditions.
That ignorance of the law is insufficient is, in fact,
supported by the language of § 2244(d)(2). In that tolling
provision, Congress provided that “the 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). The “properly filed”
limitation indicates that Congress does not view ignorance of the
law as a sufficient reason for tolling, for a “properly filed”
petition would be one that was filed within any statute of
limitations the state imposes. See Villegas v. Johnson, 184 F.3d
467, 469 (5th Cir. 1999).
11
We are mindful of the effect a dismissal will have on
Felder’s ability to have his claims heard by a federal court.
This is his first federal habeas petition. We are also mindful
of the Supreme Court’s cautionary statements in Lonchar v.
Thomas, 517 U.S. 314, 324 (1996) (“Dismissal of a first habeas
petition is a particularly serious matter, for that dismissal
denies the petitioner the protections of the Great Writ entirely,
risking injury to an important interest in human liberty.”). It
is the case, however, the Felder’s circumstances are clearly not
among those “rare and exceptional” conditions that warrant
deviation from both the express rules Congress has provided and
the grace-period we have already granted prisoners whose
convictions were final before AEDPA’s effective date. To hold
otherwise would characterize as “rare and exceptional”
circumstances that countless other prisoners could claim as their
own. Cf. Fisher, 174 F.3d at 715 (“[T]he same concept would
apply equally to many other prisoners and in different variations
of delayed information, becoming a judicial tolling rule. Such
broad decisions are for Congress, not equity.”).
III. CONCLUSION
For the above reasons, the district court’s dismissal of
petitioner’s claim is AFFIRMED.
12
EMILIO M. GARZA, Circuit Judge, dissenting:
I agree with the majority that petitioner Leslie Parnell
Felder’s incarceration, pro se status, and claim of actual
innocence do not warrant equitable tolling of the Anti-Terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) statute of
limitations. I do not agree with the majority’s decision to deny
Felder’s claim for equitable tolling based on his alleged
ignorance of AEDPA, which Felder has attributed to the statute’s
complete inaccessibility to him throughout his § 2254 filing
period. Under the circumstances, the majority’s decision is at
least premature. I therefore respectfully dissent.
Felder claims that he is entitled to equitable tolling of
the AEDPA statute of limitations because he had no notice of
AEDPA until he received Respondent’s motion to dismiss.11 Felder
directly attributes this actual ignorance to the fact that the
AEDPA was not available from the Eastham Unit library until
September 1997))seventeen months after AEDPA’s enactment, and
several months after the expiration of Felder’s grace period for
filing his § 2254 petition. See Flanagan, 154 F.3d at 200 n.2.
11
As the majority notes, prior to AEDPA’s April 24, 1996
effective date there was no statute of limitations on federal
habeas claims. See Flanagan v. Johnson, 154 F.3d 196, 198 (5th
Cir. 1998). AEDPA imposed a one-year limitations period. See 28
U.S.C. § 2244(d)(1) (1999) (providing one-year period after state
court judgment becomes final to file federal habeas petition,
subject to certain exceptions).
13
Felder has submitted supporting affidavit testimony from other
Eastham Unit inmates also alleging that the AEDPA was unavailable
until September 1997. Felder’s own affidavit specifically
attests that, had Felder known of AEDPA, he would have filed his
§ 2254 petition within the one-year grace period.12
The majority relies neither on an evaluation of the
credibility of Felder’s claims nor on other factual circumstances
particular to this case.13 Instead, it sets forth a blanket rule
that actual ignorance of the AEDPA limitations period, even if
attributable to the newly-enacted statute’s complete
unavailability to inmates, can never be a basis for equitable
tolling. I believe that this new rule is not consistent with the
purposes of equitable tolling of the AEDPA limitations period.
12
In its appellate brief, Respondent had the opportunity
to provide evidence contradicting Felder’s allegations. He
failed entirely to do so.
13
Our cases suggest that Felder’s diligence in pursuing
his federal claims after his final state habeas petition was
dismissed might impact his equitable tolling claim. See Coleman
v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). Felder’s
diligence in obtaining the statute is another relevant factual
question; only by showing such diligence can Felder show that his
lack of access to AEDPA was either 1) beyond his control or 2)
actually caused his failure to timely file his § 2254 petition.
See Vasquez v. Greiner, 68 F. Supp. 2d 307, 310 (S.D.N.Y. 1999)
(refusing to dismiss claim for equitable tolling based on
appellate attorney’s alleged failure to inform petitioner of the
Court of Appeals’ denial of his direct appeal; but noting that
equitable tolling might prove “unwarranted on all the facts and
circumstances,” such as if, after a hearing, 1) the petitioner’s
claims prove incredible in light of the weight of the evidence;
or 2) the evidence indicates that the “petitioner, in the
exercise of reasonable diligence, should have known of the Court
of Appeals’ decision at an earlier date”).
14
Nor is it supported by the available case law.
The majority is correct to note that ignorance of the law is
not itself a basis for equitable tolling of a statute of
limitations, even for pro se prisoners. See, e.g., Fisher v.
Johnson, 174 F.3d 710, 714 (5th Cir. 1999). But Felder’s claim
is not based merely on ignorance of the law. It is based on an
ignorance of the law allegedly created by the prison’s denial of
access to AEDPA for seventeen months after its enactment.
Equitable tolling is appropriate when an extraordinary factor
beyond the plaintiff’s control prevents his filing on time. See
Davis v. Johnson, 158 F.3d 806, 811, (5th Cir. 1998), cert.
denied, 119 S. Ct. 1474 (1999) (equitable tolling appropriate in
“rare and exceptional circumstances” where equity demands it);
Coleman, 184 F.3d at 402 (equitable tolling is limited to
circumstances where plaintiff is misled by defendant or
“prevented in some extraordinary way from asserting his rights”);
Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir.
1998) (equitable tolling is appropriate if “extraordinary
circumstances beyond a prisoner’s control” prevent timely filing
of § 2254 petition). The unavailability of the newly-enacted
AEDPA to a prisoner is an external factor beyond his control.
Given that AEDPA imposed a statute of limitations on the filing
of § 2254 petitions for the first time, if the statute was
completely unavailable during a prisoner’s entire period for
15
filing his § 2254 petition, it might prevent him from timely
filing his petition. Such a result would be))indeed, must
be))“extraordinary.”14 I therefore do not believe that we can
establish a blanket rule that actual ignorance of the newly-
enacted AEDPA statute of limitations, even if resulting from a
prison’s failure to allow access to the statute for a
petitioner’s entire filing period, can never be grounds for
equitable tolling.
Adopting such an overbroad rule also fails to comport with
the equitable nature of the remedy. ”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. “As a discretionary doctrine that turns on the
facts and circumstances of a particular case, equitable tolling
does not lend itself to bright-line rules.” Fisher, 174 F.3d at
713. Instead, “we and the district court must examine each case
14
I disagree with the majority’s contention that such
circumstances cannot be “rare and exceptional” because “countless
other prisoners could claim [them] as their own.” Empirically, I
believe that the complete denial of access to the newly-enacted
AEDPA for a period greater than twelve months is “rare and
exceptional.” Legally, such a denial’s actually leading to the
dismissal of a first § 2254 petition as time-barred must be “rare
and exceptional” in light of the Constitution. See Lewis v.
Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180, 135 L.Ed. 2d 606,
__ (1996) (to show violation of constitutional right of access to
courts, a prisoner “might show, for example, that a complaint he
prepared was dismissed for failure to satisfy some technical
requirement which, because of deficiencies in the prison’s legal
assistance facilities, he could not have known”).
16
on its facts to determine whether it presents sufficiently ‘rare
and exceptional’ circumstances to justify equitable tolling.” Id.
(citing Davis, 158 F.3d at 811). The need to adhere to these
equitable precepts is heightened because “dismissal of a first
habeas petition is a particularly serious matter,” Lonchar v.
Thomas, 517 U.S. 314, 324, 116 S.Ct. 1293, 1299, 134 L. Ed. 2d
440, __ (1996), subject to constitutional challenge.
No court that has acknowledged the possibility of equitable
tolling has held that actual ignorance of AEDPA, resulting from
the denial of access to the newly-enacted statute, can never be a
basis for equitable tolling. Only two of the cases cited by the
majority address such a claim, as opposed to equitable tolling
claims based on ignorance of the law alone. Those cases))the
only published cases addressing the issue))are Fisher and Miller
v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
In Fisher, we rejected a petitioner’s claim for equitable
tolling based on the forty-three day delay between AEDPA’s
effective date and the date the statute arrived in the prison
library. Fisher, 174 F.3d at 714. We concluded that “equity
simply does not call for tolling on these facts. Even after
learning of AEDPA’s limitations period, Fisher had 322 days to
complete his § 2254 petition. That is more than enough time.”
Id. at 715. We then noted, “In the right circumstances, a delay
in receiving information might call for equitable tolling–such as
17
if the prison did not obtain copies of AEDPA for months and
months.” Id. Adding that this “was not the case here,” we
found that “Fisher has not shown a rare and exceptional
circumstance that calls for equity to intervene.” Id.
The “months and months” statement in Fisher is dicta. But
it suggests that the Fisher court not only considered that the
question before us would arise, but might have reached a
different outcome from the majority here. More importantly, the
statement–and the entire discussion of whether equity “call[s]
for tolling on these facts”))explicitly refutes the suggestion
that Fisher intended to establish a bright-line rule that actual
ignorance of AEDPA resulting from a denial of access to the
statute can never be a basis for equitable tolling. In its
disavowal of such a rule, this section is consistent with the
Fisher opinion as a whole, which continually emphasizes that
equitable tolling, as an equitable remedy, hinges on the facts of
a particular case. See id. at 712 (stating that, as a
discretionary doctrine, equitable tolling is unsuited to bright-
line rules); id. at 713 (noting that each case must be examined
on its facts to see if equitable tolling is warranted); id. at
714 (holding that equity does not entail tolling on these facts).
Therefore, while Fisher admittedly is not dispositive of Felder’s
claim, I find it inconsistent with the broad rule established by
the majority.
18
Miller also fails to support the majority’s rule. While the
Miller court was not presented with an equitable tolling claim,
it did note in deciding that the AEDPA limitations period did not
violate the Suspension Clause that equitable tolling was
possible, and declined to equitably toll for Miller. See Miller,
141 F.3d at 978. Miller apparently claimed that his prison
library’s denial of access to “all relevant statutes and case
law” until April 1997 both rendered it impossible to fill out his
§ 2254 petition and left him ignorant of AEDPA. Id. The court’s
brief analysis of the equitable tolling issue did not state that
a claim of actual ignorance of AEDPA resulting from a denial of
access to its text could never be a basis for equitable tolling.
Instead, it appeared to rely on certain “individual
circumstances”—in particular, that “Miller has provided no
specificity regarding the alleged lack of access and the steps he
took to diligently pursue his federal claims.” Id. (citing
Lewis, 518 U.S. at 349-350, 116 S. Ct. at 2179, 135 L.Ed at
__).15 Subsequent Tenth Circuit cases have not read Miller to
15
Unlike Felder, Miller apparently claimed that the
denial of access to all texts both precluded him from completing
his § 2254 petition and left him actually ignorant of AEDPA. See
id. The Tenth Circuit did not separately analyze Miller’s two
claims. See id. Seemingly referring to the impossibility
argument, the court noted two other relevant circumstances: 1)
Miller’s unexplained failure to diligently pursue his federal
claims—Miller’s sole state petition for post-conviction relief
was denied in October 1993, and he admittedly had full access to
relevant texts until January 1995, yet he did not file his
federal petition until July 1997; 2) the similarities between
19
establish the rule the majority adopts today.16
Having declined to adopt the majority’s bright-line rule, I
find it premature to decide this case without any factual record,
in light of the unique circumstances present.
Miller’s § 2254 claims and those in his direct appeal and state
postconviction motion. See id. These circumstances,
particularly the latter, while clearly refuting Miller’s claim
that he could not have completed his federal petition without
additional research access, do not seem relevant to his claimed
actual ignorance of AEDPA.
16
In Bradley v. Poppel, 1999 WL 992981, (10th Cir., Nov.
2, 1999) (unpublished), Bradley claimed equitable tolling based
on 1) the unavailability of trained law clerks to assist him with
his defense; 2) his ignorance of the law; and 3) an inadequate
law library. See id. at *2. The court rejected Bradley’s first
and second claims with reference to established rules, noting
that there is no right to legal counsel in collateral proceedings
and that ignorance of the law does not warrant equitable tolling.
See id. The court conspicuously failed to rely on such an
ironclad rule in disposing of Bradley’s third claim. Instead, it
held that “Bradley’s conclusory allegation that prison library
facilities are inadequate is also insufficient to justify
equitable tolling.” Id. (citing to Miller’s statement that
equitable tolling is unwarranted where the inmate has “provided
no specificity” in his allegations).
Likewise, in Rodriquez v. Klinger, 1999 WL 394562 (10th
Cir., June 16, 1999) (unpublished), Rodriquez sought equitable
tolling because the prison warden “failed to provide him a copy
of AEDPA.” Id. at 1. The Tenth Circuit noted that the district
court had held that Rodriquez was not entitled to equitable
tolling because he was insufficiently diligent in pursuing his
claims. Id. In particular, the court emphasized the district
court’s finding that Rodriquez had never requested a copy of
AEDPA, even though he had access to an inmate research assistant
who could have provided the necessary information. See id. In
light of these findings, and emphasizing that it had closely
reviewed the entire record, the Tenth Circuit affirmed the denial
of equitable tolling.
Like Miller, both cases appear to rely on individual
circumstances. Neither opinion is consistent with Miller’s
having established a rule that equitable tolling based on a
denial of access to AEDPA can never exist.
20
The circumstances here differ significantly from those in
Fisher. Fisher’s forty-three day delay in receiving notice of
AEDPA was, as we noted, “not rare.” Fisher, 174 F.3d at 714.
The seventeen-month delay alleged by Felder is, on its face, far
more likely to be a “rare and exceptional” circumstance. Unlike
the delay in Fisher, it is also prejudicial, and thus susceptible
to equitable intervention. If Felder’s allegations are true, his
grace period had expired by the time he learned of the time
limit. Thus, the fact relied upon by the Fisher court in finding
that “equity does not call for tolling on these facts” would not
apply here. See id. at 715 (“Even after learning of AEDPA’s
limitations period, Fisher had 322 days to complete his § 2254
petition.”). Applying the Fisher standard, if Felder’s
allegations are true, equity might “call for tolling” here. The
Fisher “months and months” dicta, id., merely confirms that
Felder’s different circumstances may warrant a different result.
Likewise, the circumstances apparently relied upon in Miller
do not exist here. Felder’s final state post-conviction petition
was dismissed in April 1997, only three months before he filed
his § 2254 petition. More importantly, Felder’s allegations are
not merely general and conclusory. Felder has specifically
alleged that his failure to comply with AEDPA’s time limit
resulted from the statute’s unavailability to Eastham Unit
21
inmates until September 1997, and has presented affidavit
testimony supporting this specific allegation. Respondent was
given an opportunity to rebut these allegations and failed
entirely to do so. Each of these circumstances appears to differ
from Miller.
I therefore cannot decide at this stage, as a matter of law,
that Felder’s circumstances are not “rare and exceptional,”
Davis, 158 F.3d at 811. Nor can I decide with certainty that it
is not “inequitable” to decline to toll for at least twenty-one
days. Id. at 810 (noting that equitable tolling is warranted
when “strict application of the statute of limitations would be
inequitable”); see also Fisher, 174 F.3d at 713 (citing Lonchar
and noting that, in light of the importance of the right to bring
a first habeas petition, “we must be cautious not to apply the
statute of limitations too harshly”); cf. Lewis, 518 U.S. at 351,
116 S.Ct. at 2180, 135 L.Ed. 2d at __ (stating that, to show
violation of constitutional right of access to courts, a prisoner
“might show, for example, that a complaint he prepared was
dismissed for failure to satisfy some technical requirement
which, because of deficiencies in the prison’s legal assistance
facilities, he could not have known”). Any such determination is
premature.
As the majority discusses, Felder has not had the
opportunity to present his equitable tolling claim to the
22
district court. The district court’s inability to consider the
issue means that there has been no factual development
whatsoever. To determine whether Felder’s circumstances warrant
equitable tolling, it is necessary both to assess the veracity of
Felder’s assertions and to develop the other factual
circumstances that may bear on this legal determination. See,
e.g., Fisher, 174 F.3d at 715 (stating that, as it depends on
individual facts and circumstances, decision whether equitably
toll is “left to the district court’s discretion” and is reviewed
for abuse of that discretion).
Without expressing any opinion as to its merit, I would
therefore remand for the district court to assess Felder’s
equitable tolling claim for the first time, conducting such fact-
finding as it finds necessary to determine 1) whether Felder can
establish that his factual allegations))including actual
ignorance of AEDPA until September 1997 resulting from its
unavailability to Eastham Unit inmates))are true; and 2) if so,
whether Felder’s circumstances as a whole are the “rare and
exceptional” circumstances, Davis, 158 F.3d at 811, in which
equity compels us to toll the AEDPA statute of limitations. As,
in light of this court’s jurisprudence, I find the majority’s
election to instead decide this case on legal grounds premature,
and the rule it establishes overly sweeping, I dissent.
23