IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10773
CHAU MINH TRINH,
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 Northern District of Texas
USDC No. 4:00-CV-390-A
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February 6, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Chau Minh Trinh, Texas prisoner # 727527, seeks a
certificate of appealability (COA) to appeal the district court’s
dismissal of his 28 U.S.C. § 2254 application for a writ of habeas
corpus as time-barred under the Antiterrorism and Effective Death
Penalty Act’s one-year limitations period. See 28 U.S.C.
§ 2244(d). Trinh argues that equitable tolling applies to his case
because he did not receive notice from his attorney or the court of
the denial of his state petition for discretionary review (“PDR”)
*
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opinion should not be published and is not precedent except under the limited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.
No. 00-10773
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until almost two-and-a-half years after the decision was rendered,
when Trinh alleges he inquired with the court about the status of
his case.
A COA may be issued only if the prisoner has made a
“substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). If a district court “denies a habeas petition
on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, ___, 120 S. Ct. 1595, 1604 (2000).
For equitable tolling to apply, the petitioner must not
only demonstrate “rare and exceptional circumstances,” but also
must “diligently pursue his § 2254 relief.” Coleman v. Johnson,
184 F.3d 398, 403 (5th Cir. 1999), cert. denied, 120 S. Ct. 1564
(2000). The district court concluded that Trinh’s allegations
regarding his delayed notice of the refusal of his PDR “[did] not
present rare and exceptional circumstances.” Subsequent to the
district court’s dismissal of Trinh’s § 2254 petition, however,
this court held that a purported four-month delay in receiving
notice of the denial of a state habeas application could constitute
a rare and exceptional circumstance warranting equitable tolling of
the one-year limitations period. Phillips v. Donnelly, 216 F.3d
508, 511, modified on other grounds, 223 F.3d 797 (5th Cir. 2000).
In light of Phillips, it is debatable whether the district court’s
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determination that equitable tolling did not apply in this matter
was correct. Trinh also has stated facially valid constitutional
claims in his petition. See Slack, 120 S. Ct. at 1604.
Accordingly, COA is GRANTED, the district court’s
judgment dismissing Trinh’s § 2254 petition is VACATED, and this
matter is REMANDED to the district court, possibly aided by an
evidentiary hearing, for a determination as to when Trinh first
received notice of the refusal of his PDR and whether he diligently
pursued his federal habeas rights. Phillips, 216 F.3d at 511. On
remand, Trinh bears the burden of proving the factual predicates
warranting equitable tolling. Phillips, 223 F.3d at 797.
COA GRANTED; VACATED and REMANDED.