IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-60062
_____________________
RAYMOND PHILLIPS,
Petitioner-Appellant,
versus
JOHN F. DONNELLY, JR.;
MICHAEL C. MOORE, Attorney General,
State of Mississippi,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
_________________________________________________________________
July 10, 2000
Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
Raymond Phillips pled guilty to vehicular manslaughter in
Mississippi state court on June 29, 1995. He subsequently filed a
petition seeking habeas corpus relief in federal court, which was
denied because of untimeliness. We then granted a certificate of
appealability (“COA”) on the single issue of whether Phillips’s
habeas corpus motion was timely filed. For the reasons stated
below, we vacate the district court’s dismissal and remand for a
hearing as to whether Phillips is entitled to equitable tolling of
the statute of limitations.
I
On June 29, 1995, Phillips entered a guilty plea on the charge
of vehicular homicide. The Mississippi trial court sentenced him
to a fourteen-year jail term. Under Miss. Code Ann. § 99-35-101,
a criminal defendant who pleads guilty has no right to appeal his
conviction. Phillips filed a state habeas corpus petition on
February 5, 1997, which the state court denied on May 1, 1997.
Phillips contends that he did not receive notice of this result
until August 29, 1997. Phillips then filed a motion for an out-of-
time appeal on September 1, 1997, in state court, which was also
denied on September 18, 1997. Phillips never appealed this denial.
On October 17, 1997, Phillips filed an application for writ of
habeas corpus in federal district court pursuant to 28 U.S.C.
§ 2254.1 The state filed a motion to dismiss, asserting that the
petition was time-barred under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). The magistrate judge recommended
dismissal. Phillips responded by arguing that the time for filing
his application should have tolled between May 1, 1997 and
August 29, 1997, the period between the actual denial of his state
habeas petition and the day when he claims he was finally notified
1
Phillips raised the following four arguments: (1) that his
guilty plea was involuntary; (2) that there was newly discovered
evidence; (3) that his counsel had been ineffective; and (4) that
he was denied due process.
2
of the denial. In response to this argument, the district court
returned the case to the magistrate judge.
After further review, the magistrate judge entered a
supplemental report, recommending that any delay in notification of
the denial should not toll the limitations period and that
dismissal was appropriate. The district court adopted this report
and recommendation and dismissed Phillips’s petition with
prejudice.
Phillips next filed a notice of appeal, which the district
court construed as an application for a COA. The district court
denied the application, and Phillips then requested a COA from this
court. We granted that COA on the limited question of whether his
petition was timely.
II
Because Phillips filed his federal habeas corpus petition on
October 17, 1997, after the effective date of the AEDPA, the AEDPA
governs his petition. See Lindh v. Murphy, 521 U.S. 320, 324-26,
117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)(confirming that AEDPA
applies to federal habeas corpus petitions filed on or after
April 24, 1996). Under a literal reading of 28 U.S.C.
§ 2244(d)(1)2, Phillips’s ability to petition for habeas corpus
2
This provision reads:
(d)(1) A 1-year period of limitation shall apply to
3
relief ended on June 29, 1996, one year after the state court
judgment became final. But in United States v. Flores, 135 F.3d
1000, 1005-06 (5th Cir. 1998), we held that for § 2254 petitions,
one year from the enactment of the AEDPA constituted a reasonable
time to file for those prisoners whose convictions had become final
before enactment of the AEDPA. Phillips therefore had until
April 24, 1997, to file his habeas corpus petition.
The AEDPA also provides for the tolling of the statute of
limitations under certain circumstances:
(2) 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.
Id. In addition, in certain exceptional circumstances, equitable
tolling may be warranted. Fisher v. Johnson, 174 F.3d 710, 714
(5th Cir. 1999).
Under normal circumstances, Phillips had 365 days from
April 24, 1996, to file his habeas corpus petition. The tolling
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;. . .
28 U.S.C. § 2244.
4
provision for pending state habeas corpus applications began on
February 5, 1997, when he filed his appeal in state court. At this
point, 286 days had run on the statue of limitations, leaving 79.
On May 1, 1997, with denial of his appeal by the state court,
the period normally would have started running again. It would
have run out, therefore, long before Phillips filed his federal
habeas corpus petition on October 17, 1997. Even if we accept
Phillips’s contention that he did not receive notice of the denial
until August 29, 1997, the state petition was not “pending”3 during
that subsequent four-month delay. Thus, under the provisions of
the statute, Phillips’s federal petition was untimely.
Equitable tolling, however, may apply in this case. It is
true that tolling is only available in “exceptional circumstances.”
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). As we noted
in Fisher, 174 F.3d at 715, a substantial delay of several months
in receiving information concerning a change in the law might
qualify. In this case, the purported delay in receiving notice of
the denial was four months. And Phillips pursued the process with
diligence and alacrity: he filed for an out-of-time appeal within
three days of allegedly receiving notice of the denial. He then
3
The American Heritage Dictionary of the English Language 969
(10th ed. 1981) defines “pending” as “[n]ot yet decided or settled;
awaiting conclusion or confirmation.” On May 1, 1997, the matter
on appeal was decided and settled, regardless of whether Phillips
had notice of the denial on that date.
5
filed his federal habeas corpus appeal within one month of the
denial of the out-of-time appeal. Thus, we conclude that the delay
in receiving notification that Phillips describes could qualify for
equitable tolling. This would toll the period from May 1, 1997 to
August 29, 1997. Thus, as of August 29, Phillips would still have
had 79 days remaining on the statute of limitations.
Another two days ran on the clock after Phillips received
notice of the denial but before he filed his motion for an out-of-
time appeal in state court on September 1, 1997. The period then
tolled until the denial of that appeal on September 18. Another 30
days ran before Phillips filed his federal habeas corpus petition
on October 17. Thus, Phillips still had 47 days left on the
statute of limitations on that date. This habeas corpus petition,
therefore, would have been timely.
III
This all assumes that Phillips can establish that he did not
receive notice of the denial of his appeal until August 29, 1997.
Although we have not found any cases discussing who bears the
burden of proof concerning equitable tolling in the AEDPA context,
we believe the defendant should bear this burden. In other areas
of federal law, the party seeking to establish tolling typically
carries that burden. See Hood v. Sears Roebuck and Co., 168 F.3d
231, 232 (5th Cir. 1999)(claimant bears the burden in Title VII
6
cases); Blumberg v. HCA Management Co., Inc., 848 F.2d 642, 644
(5th Cir. 1988)(plaintiff bears the burden in ADEA cases); Taylor
v. General Telephone Co., 759 F.2d 437, 442 (5th Cir.
1985)(plaintiff bears burden concerning equitable tolling of the
filing requirement with the EEOC); United States v. Marshall, 856
F.2d 896, 900 (7th Cir. 1988)(government must establish factual
predicates to tolling). We believe that the burden should fall on
Phillips in this case. We therefore REMAND the case to the
district court for a hearing as to whether Phillips first received
notice of the denial on August 17, 1997.
IV
For the reasons stated herein, the district court’s denial of
habeas corpus relief is
VACATED and REMANDED.
7