IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20930
RICHARD KENT MILLER,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(H-97-CV-3391)
July 11, 2002
Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Prisoner Richard Kent Miller appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition as time-barred under the
one-year limitations period of 28 U.S.C. § 2244(d). Miller was
convicted of aggravated sexual assault and sentenced to life
imprisonment in 1992. On March 3, 1994, his conviction was affirmed
by an intermediate state appellate court. The Texas Court of
*
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this opinion should not be published and is not precedent except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.
1
Criminal Appeals refused a petition for discretionary review on
June 29, 1994.
Because Miller’s conviction became final prior to the AEDPA’s
effective date of April 24, 1996, his petition was timely if it was
filed before the one-year grace period expired on April 24, 1997.1
Six days before this deadline, on April 18, 1997, Miller delivered
a state habeas application to prison officials for mailing. The
application was postmarked on April 19, was received by the clerk’s
office on April 22, and was filed in the Harris County District
Court on May 5. Thus Miller filed his state petition eleven days
after the expiration of the one-year grace period.
The Texas Court of Criminal Appeals denied Miller’s state
petition on September 22, 1997, but Miller did not receive the
court’s notice until October 2. He filed his § 2254 petition on
October 2, the same day that he received notice that his state
habeas application had been denied but ten days after the denial of
his state petition. The Director moved to dismiss Miller’s petition
as time-barred, and the district court initially denied the motion
even though Miller’s state petition was untimely filed. Later the
district court granted the motion in light of this court’s
intervening decision in Coleman v. Johnson,2 in which we refused to
extend the “mailbox rule” to the filing of state habeas
1
Flanagan v. Johnson, 154 F.3d 196, 199-200, 202 (5th Cir.
1998).
2
184 F.3d 398 (5th Cir. 1999).
2
applications. Miller appealed, and we granted Miller a Certificate
of Appealability to determine whether equitable tolling should
apply to preserve his claims.
Despite the fact that Miller’s state petition was filed eleven
days after the expiration of the grace period on April 24, 1997, he
asks us to apply equitable tolling because he exercised diligence
in seeking § 2254 relief once state habeas relief proved
unsuccessful and because the state clerk did not file-stamp his
state habeas application until thirteen days after it was received.
The limitations period of § 2244(d), including the one-year
grace period, is subject to equitable tolling “in rare and
exceptional circumstances.”3 The doctrine of equitable tolling
preserves a petitioner’s claims “when strict application of the
statute of limitations would be inequitable.”4 A district court’s
refusal to invoke the doctrine of equitable tolling is reviewed
only for abuse of discretion.5
The district court relied upon our decision in Coleman to
dismiss Miller’s petition, and our holding in Coleman governs the
result here. Miller’s state petition was filed eleven days after
the end of the grace period, and is thus untimely even though he
3
Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998);
Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998).
4
Davis, 158 F.3d at 810 (internal quotations and citations
omitted).
5
Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999).
3
delivered the petition to prison officials for mailing six days
before the deadline. Miller correctly points out that although we
declined to extend the mailbox rule to the determination of filing
dates for state habeas applications—partly because doing so would
require us to interpret state rules of filing and to address the
filing systems of state courts6—we explicitly stated that when a
prisoner’s ability to file a federal habeas petition has been
affected by a state proceeding, we would examine the facts and
determine whether the prisoner was entitled to equitable tolling.7
Nonetheless, we do not that find that the district court
abused its discretion in refusing to apply equitable tolling in
this case. The application of our rule in Coleman is not itself a
“rare and exceptional circumstance[]”8 sufficient to justify the
application of equitable tolling. Equitable 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.”9
We recognize that the state’s decision to notify Miller of the
denial of his state petition via the mail may have precluded him
6
Coleman, 184 F.3d at 402.
7
Id.
8
Davis, 158 F.3d at 811.
9
Ott, 192 F.3d at 512 (quoting Coleman v. Johnson, 184 F.3d
398, 402 (5th Cir. 1999)).
4
from filing the instant petition until eleven days after the state
petition was denied, but his state petition was itself filed eleven
days after the April 24, 1997 deadline. While we recognize that the
April 24 deadline was judicially crafted, Miller nonetheless waited
almost three years after his conviction became final to file his
state petition. As this court has noted, “equity is not intended
for those who sleep on their rights.”10
We cannot apply equitable tolling in every circumstance where
the application of Coleman renders a state petition untimely. The
application of a rule is not a rare or exceptional circumstance
justifying equitable tolling, and thus we find no error in the
district court’s decision not to apply the doctrine of equitable
tolling in this case. Because equitable tolling does not apply, the
judgment appealed is AFFIRMED.
10
Coleman, 184 F.3d at 403 (quoting Fisher v. Johnson, 174
F.3d 710 (5th Cir. 1999)).
5