IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41079
Summary Calendar
JOHN IKE COX,
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 Eastern District of Texas
USDC No. 6:00-CV-16
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June 25, 2001
Before GARWOOD, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
John Ike Cox, Texas state prisoner # 741602, has appealed
from the district court’s dismissal of his 28 U.S.C. § 2254
habeas corpus petition as time-barred under the one-year statute
of limitations of 28 U.S.C. § 2244(d). We AFFIRM.
Both the district court and a judge of this court granted
Cox a certificate of appealability (COA) on whether the
limitations period should have been tolled because of a delay in
*
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that this opinion should not be published and is not precedent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. 00-41079
-2-
his receiving notice that his state-court habeas application had
been denied.
Cox argues that the limitations period should have been
tolled during the period that he was incarcerated in the Smith
County Jail. He asserts that because other legal mail was
forwarded to him from the Pack Unit of the Texas Department of
Criminal Justice, Institutional Division, during the time he was
incarcerated in Smith County, “he had every logical reason to
believe any and all legal correspondence sent back to Pack Unit
would also be forwarded to him in Smith County.” He argues that
his being held in Smith County beyond a reasonable date, and his
not having the notification card of the state appellate court’s
habeas decision forwarded to him from the Pack Unit, are rare and
exceptional circumstances entitling him to equitable tolling.
However, Cox has failed to give any explanation for having stated
in his state habeas petition that he was then housed in Pack
Unit, although he had left there almost six months previously,
and has not returned. The Court of Criminal Appeals promptly
mailed to Cox at the address stated in his writ application–the
Pack Unit–notice of the denial of his writ application, and it
was timely received at that Unit. But Cox was not there, and had
not been when he filed his state writ with the Court of Criminal
Appeals. Cox never notified the Court of Criminal Appeals of any
change of address.
We review the district court’s decision not to invoke the
doctrine of equitable tolling for abuse of discretion. Ott v.
Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529
No. 00-41079
-3-
U.S. 1099 (2000). Equitable tolling “applies principally where
the plaintiff is actively misled by the defendant . . . or is
prevented in some extraordinary way from asserting his rights.”
Id. at 513; Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.
1999). It is reserved for “rare and exceptional circumstances.”
Ott at 513. Mere “excusable neglect” does not support equitable
tolling. Id. at 513-14; Coleman at 402.
We are unable to conclude that the district court abused its
discretion in concluding that the requisite rare and exceptional
circumstances were not shown. The state did not actively mislead
Cox or prevent him from asserting his rights; rather, Cox was
responsible for the misdirection of the mail by the Court of
Criminal Appeals.
Accordingly, the judgment of the district court is
AFFIRMED.