IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20335
Summary Calendar
EMMANUEL MORENO,
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-98-CV-1189
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November 7, 2000
Before JOLLY, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:1
Emmanuel Moreno was convicted of murder in Texas state court
in 1992. He subsequently filed a petition seeking habeas corpus
relief in federal court, which was denied because of untimeliness.
This court granted a certificate of appealability (“COA”) on the
issue whether the limitations period under the Antiterrorism and
Effective Death Penalty Act (AEDPA) is tolled until the date the
state court denies the prisoner’s habeas petition, or whether the
1
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that this opinion should not be published and is not precedent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.
limitations period is tolled until the prisoner receives actual
notice of the denial.
Once a prisoner’s state petition is denied, it is no longer
“pending” for purposes of tolling the AEDPA limitations period.
See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
However, where a prisoner’s time to file a federal habeas petition
runs out before he receives actual notice that his state petition
was denied, the doctrine of equitable tolling may apply. See id.
Equitable tolling is “a discretionary doctrine that turns on the
facts and circumstances of a particular case . . . .” Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Whether the particular
facts of Moreno’s case warrant the application of the equitable
tolling doctrine is a question of fact to be decided by the
district court in its discretion. See id.
Accordingly, the dismissal as untimely by the district court
is VACATED and this case is REMANDED to the district court to
determine whether the doctrine of equitable tolling should be
applied to the facts of this case.
2