UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-10696
Summary Calendar
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GARY LEE NELMS,
Petitioner,
versus
GARY JOHNSON, Director TDCJ-ID,
Respondent.
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Appeal from the United States District Court
for the Northern District of Texas
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September 30, 2002
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
This court granted a COA to review whether appellant
Nelms’s late-filed federal habeas petition should be saved by
application of equitable tolling principles. We consider only the
issue of equitable tolling, on which COA was granted, not any legal
issues raised by Nelms regarding the calculation of untimeliness.
*
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this opinion should not be published and is not precedent except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.
Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997). For the
following reasons, we affirm the district court’s denial of relief.
First, our scope of review is narrowly confined to
deciding whether the district court abused its discretion in
rejecting equitable tolling. Ott v. Johnson, 192 F.3d 510, 513
(5th Cir. 1999). Moreover, equitable tolling is appropriate only
in “rare and exceptional circumstances” where equity demands it.
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Normally,
such circumstances will arise if, contrary to the facts here, a
petitioner has been actively misled by the state or prevented in
some extraordinary way from pursuing his rights. Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999). These principles
emphasize the deference due the district court’s decision and the
narrowness of the doctrine of equitable tolling itself.
Second, Nelms receives no benefit from the five-day delay
between the date the Texas Court of Criminal Appeals denied his
state habeas application and the date the court mailed notice of
its act to his attorney. Such a delay does not entitle a
petitioner to statutory tolling. Phillips v. Donnelly, 216 F.3d
508, 511, reh’g granted in part on other grounds, 223 F.3d 797 (5th
Cir. 2000). Nor may Fed. R. Civ. P. 6(e) be advanced in support of
an extension of tolling for this interval. Crutcher v. Cockrell,
___ F.3d ___, case #01-20939 (5th Cir. Aug. 28, 2002). The delay
is easily within the reasonable time limits that a state agency may
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use to notify interested citizens of its actions, hence there is
nothing extraordinary to favor Helms’s petition.
Third, even if we accept that slightly over a month
elapsed from Nelms’s mailing of his motion for rehearing of his
state habeas petition and its docketing in the Texas Court of
Criminal Appeals, (a gap not protected from statutory tolling by
the “mailbox rule,” see Spotville v. Cain, 149 F.3d 374, 376-78
(5th Cir. 1998)), equitable tolling is still not required. The
district court did not abuse its discretion in weighing this one-
month delay against Nelms’s initial, un-tolled delay of 317 days
between the affirmance of his conviction and his filing of a state
habeas petition. This court has found no case in which equitable
tolling was granted after a petitioner had let ten months of the
AEDPA limitations period slip by.
AFFIRMED.
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