IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 02-30184
Summary Calendar
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SHAREEF COUSIN,
Petitioner-Appellant,
VERSUS
C. MARTIN LENSING,
WARDEN, HUNT CORRECTIONAL CENTER,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
November 12, 2002
Before HIGGINBOTHAM, SMITH, and in determining his petition was time-barred.
CLEMENT Circuit Judges. Finding no error, we affirm.
JERRY E. SMITH, Circuit Judge: I.
In September 1995, Cousin pleaded guilty
Shareef Cousin appeals the dismissal of his of four counts of armed robbery. In January
28 U.S.C. § 2254 petition for writ of habeas 1996, he was convicted of an offense unrelated
corpus, contending that the district court erred to the armed robbery charges, the murder of
Alfred Gerardi. During the penalty phase of tion To Exclude Evidence of Prior Convic-
the murder trial, the state presented evidence tions,” captioned for both the armed robbery
concerning, among other matters, Cousin’s and murder cases. The trial court denied the
convictions of armed robbery. Cousin was motion, the state appellate court affirmed, and
sentenced to death. the Louisiana Supreme Court denied the writs
without reasons on January 6, 1999.
On February 2, 1996, at a sentencing hear-
ing on the armed robbery cases, Cousin On January 19, 1999, Cousin filed the in-
moved for withdrawal of the guilty pleas as stant § 2254 petition challenging the validity of
involuntary on the ground that he was unaware his armed robbery convictions. The state
they would be used during the sentencing contends that the petition was untimely under
phase of the murder trial. The motion was 28 U.S.C. § 2244(d), because it was not filed
denied, and Cousin was sentenced to twenty within the one-year grace period for convic-
years’ incarceration on the armed robbery tions that became final before the enactment of
charges. He did not appeal or timely seek the Anti-Terrorism and Effective Death Pen-
reconsideration, so the convictions became alty Act (“AEDPA”). See United States v.
final on February 7, 1996, five days after the Flores, 135 F.3d 1000, 1006 (5th Cir. 1998).
sentencing hearing. LA. CODE CRIM. P. art. That period expired on April 24, 1997, almost
914. two years before Cousin filed his habeas peti-
tion.
On February 12, 1996, Cousin filed an ap-
plication for supervisory writs in state appel- The magistrate judge concluded, however,
late court, alleging that the trial court had that the limitations period was tolled, because
erred in denying the motion to vacate the guil- Cousin’s appeal of his murder conviction
ty pleas without a hearing, and renewing the raised the invalidity of the armed robbery
allegation that the pleas were involuntary be- convictions and thus constituted “other collat-
cause trial counsel had not advised Cousin that eral review” of those convictions for purposes
they could be used during the penalty phase. of § 2244(d)(2). Even if this conclusion was
The appellate court denied the application, and correct, Cousin’s petition was timely only if
the Louisiana Supreme Court denied the writs filed by April 9, 1999. Because it was not
on April 26, 1996. properly filed until January 10, 2001, it is time-
barred irrespective of whether Cousin’s appeal
At the same time, Cousin was pursuing a of his murder conviction constituted other
motion for a new trial in his murder case on collateral review of his armed robbery convic-
various grounds, including the alleged invalid- tions. Therefore, we need not decide that
ity of the armed robbery guilty pleas. The issue to affirm the dismissal of the petition as
state trial court denied the motion, but on Ap- time-barred.
ril 14, 1998, the Louisiana Supreme Court re-
versed Cousin’s murder conviction on grounds Cousin submitted this § 2254 petition to the
unrelated to the use of the armed robbery district court in January 1999 with a motion to
convictions during the sentencing phase. On proceed in forma pauperis (“IFP”). That
remand, Cousin filed a “Petition for Post- motion was denied, so the petition could not
conviction Relief, and in the Alternative, Mo- be deemed filed until the appropriate filing fee
2
had been paid. The record indicates that 28 U.S.C.A. foll. § 2254. Because Cousin’s
notice of denial of the IFP motion was sent to IFP motion was denied, the district court
Cousin’s counsel on January 22, 1999, but it found that his petition was not filed until the
was not until almost two years later, on Janu- required filing fee was submitted in January
ary 10, 2001, that the five dollar filing fee was 2001, so the petition was time-barred. The
paid. Cousin’s § 2254 petition was filed by the possibility was raised, however, that the leni-
clerk on that date, well past the expiration of ent treatment typically afforded pro se prisoner
the limitations period even under the construc- litigants with respect to filing requirements
tion of § 2244(d)(2) most favorable to Cousin. might apply to Cousin despite the fact that he
is represented by counsel.
Although the district court determined that
the petition was time-barred, it nonetheless In the case of a pro se prisoner, “a habeas
certified two questions for appeal: first, the corpus petition should be deemed filed when
question whether the petition is time-barred the petition is handed over to prison authori-
when there was no showing that Cousin had ties for mailing.” Spotville v. Cain, 149 F.3d
notice that a filing fee was owed; and second, 374, 376 (5th Cir. 1998). This “mailbox rule”
whether it is fundamentally unfair to dismiss applies even if the pro se litigant has not paid
the petition for failure timely to pay the filing the required filing fee at the time the petition is
fee without considering the merits of petition- turned over for mailing. Id. at 377 (“[T]he
er’s claims of innocence. timeliness of [a] petition for purposes of appli-
cation of the effective date of the AEDPA de-
II. pends, not on a fee payment, but on when [the
In certifying appeal on the question whether petitioner] delivered his papers to prison au-
Cousin’s petition is time-barred, the district thorities for filing.”). We decline, however, to
court raised two distinct issues. First, it dis- extend this rule to prisoner litigants who are
cussed the possibility that the time of filing of represented by counsel.
the petition might be evaluated under the leni-
ent “mailbox rule” applicable to filings submit- The “mailbox rule” constitutes an exception
ted by pro se prisoners. Second, the court to the normal requirements of rule 3 and is
addressed the possibility that the circumstanc- premised on “this court’s traditional disposi-
es of this case qualify for equitable tolling such tion of leniency toward pro se litigants.” Id.
that the limitations period would be extended. This leniency is justified by the “[unique] situ-
As we explain, neither the “mailbox rule” nor ation of prisoners seeking to appeal without
equitable tolling applies, given the circum- the aid of counsel.” Houston v. Lack, 487
stances surrounding the filing of Cousin’s U.S. 266, 270 (1988). The inability of an un-
petition. represented prisoner litigant to exercise con-
trol over the filing of his pleadings, and his
A. dependence on prison officials for such filing,
Rule 3 of the Rules Governing Section supports a flexible approach to the application
2254 Cases specifically provides that a habeas of deadlines. Spotville, 149 F.3d at 378; see
petition is not filed unless accompanied by the Lack, 487 U.S. at 271-72.
filing fee or an order granting leave to proceed
IFP. Rules Governing § 2254 Cases, Rule 3, The same rationale does not support appli-
3
cation of the mailbox rule to prisoner litigants Although AEDPA’s limitations provision, like
who are represented by counsel.1 A prisoner any statute of limitations, may be equitably
litigant who is represented by counsel is not tolled, Davis v. Johnson, 158 F.3d 806, 811
incapable of controlling the filing of pleadings. (5th Cir. 1998), the decision to invoke equita-
Instead, he has an agent through whom he can ble tolling is left to the discretion of the district
control the conduct of his action, including the court, and we review such decisions only for
filing of pleadings. As a result, he is not re- abuse of discretion. Fierro v. Cockrell, 294
stricted in the same manner as one who is F.3d 674, 679 (5th Cir. 2002).
representing himself, nor is he dependent on
the prison system or its officials for his ability Equitable tolling is permitted only “in rare
to pursue an action or file necessary pleadings. and exceptional circumstances.” Davis, 158
Consequently, the justifications for leniency F.3d at 811. Cousin contends that neither he
with respect to pro se prisoner litigants do not nor his attorneys received notice of the denial
support extension of the “mailbox rule” to of his IFP motion and therefore had no way of
prisoners represented by counsel.2 knowing that the filing fee had become due.
Cousin claims that this failure of notice was
B. error by the district court sufficient to justify
Cousin argues that the district court should
have equitably tolled the limitations period.3
3
(...continued)
that the untimeliness of his habeas petition should
1
Cf. Lack, 487 U.S. at 271 (justifying lenient be evaluated under the “unique circumstances”
treatment of pro se prisoner litigants in significant doctrine. Both Thompson and the principal author-
part because of lack of counsel). ity upon which it relies, Harris Truck Lines, Inc. v.
Cherry Meat Packers, Inc., 371 U.S. 215, (1962),
2 address the timeliness of notices of appeal, a very
Interestingly, other circuits have held that pro
se litigants who employ even a non-attorney in- different question from the one presented here.
termediary to file their pleadings are denied the Therefore, even if the unique circumstances doc-
beneficial treatment afforded pro se litigants acting trine remains good law, see Lack, 487 U.S. at 282
without such agents. See, e.g., Cook v. Stegall, 295 (Scalia, J., dissenting) (“Our later cases . . . effec-
F.3d 517, 521 (6th Cir. 2002) (holding that the tively repudiate the Harris Truck Lines approach,
mailbox rule did not apply to pro se prisoner who affirming that the timely filing of a notice of appeal
sent habeas petition to his daughter for mailing); is ‘mandatory and jurisdictional.’”) (quoting
United States v. Cicero, 214 F.3d 199, 204-05 Griggs v. Provident Consumer Discount Co., 459
(D.C. Cir. 2000) (limitations not tolled where U.S. 56, 61 (1982)), it does not apply to the limita-
prisoner forwarded petition to jailhouse lawyer who tions period governing habeas petitions.
later was placed in administrative segregation,
delaying the filing); Paige v. United States, 171 In any event, even if on point, “Thompson ap-
F.3d 559, 560-61 (8th Cir. 1999) (mailbox rule plies only where a party has performed an act
inapplicable where prisoner mailed petition to which, if properly done, would postpone the dead-
brother for preparation and filing). line for filing his appeal and has received specific
assurance by a judicial officer that this act has
3
Cousin initially argues that equitable tolling been properly done.” Osterneck v. Ernst & Whin-
does not apply to this case, citing Thompson v. ney, 489 U.S. 169, 179 (1989). As discussed be-
INS, 375 U.S. 384, 387 (1964), for the proposition low, the district court issued no such assurance on
(continued...) which Cousin could have relied.
4
equitable tolling of the limitations period. sition that attorney error does not trigger
Equitable tolling is warranted, however, only equitable tolling is the longstanding rule that
in situations “where the plaintiff is actively prisoners are not entitled to counsel during ha-
misled by the defendant . . . or is prevented in beas proceedings and thus cannot state a claim
some extraordinary way from asserting his for ineffective assistance during those proceed-
rights.” Coleman v. Johnson, 184 F.3d 398, ings. See Coleman v. Thompson, 501 U.S.
403 (5th Cir. 1999). 722, 752 (1991). Moreover, a petitioner’s
ignorance or mistake is insufficient to warrant
This court has held that such extraordinary equitable tolling. Coleman, 184 F.3d at 402.
circumstances exist where a petitioner is mis-
led by an affirmative, but incorrect, representa-
tion of a district court on which he relies to his Following these cases, it seems evident that
detriment. United States v. Patterson, 211 counsel’s mistake does not warrant equitable
F.3d 927, 931-32 (5th Cir. 2000). Even if tolling, particularly under the circumstances
there were a failure of notice in this case, there presented here, where counsel inexplicably
were no affirmative statements, comparable to waited for so long. A contrary holding would
those in Patterson, on which Cousin could lead to perverse results, in that the procedural
have relied. He was not deceived by the dis- errors of trained attorneys would be dealt with
trict court, nor did any party obstruct his at- less harshly than would be mistakes by pro se
tempts to obtain habeas relief. Instead, he was litigants. Accordingly, we join the other cir-
harmed by the failure, for almost two years, of cuits that have considered this issue and hold
his own attorney adequately to investigate the that mere attorney error or neglect is not an
status of his petition. extraordinary circumstance such that equitable
tolling is justified.
Many courts have considered the question
whether attorney error constitutes “rare and In any event, the doctrine of equitable toll-
exceptional circumstances” and have held that ing is not applied where a petitioner has failed
it does not.4 Additional support for the propo to pursue habeas relief diligently. Alexander v.
Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).
The petition at issue in this case remained sub-
4
mitted but unfiled for almost two years, at
See United States v. Marcello, 212 F.3d
least in part because counsel failed adequately
1005, 1010 (7th Cir. 2000) (holding that the death
to investigate the status of the case. It is im-
of the attorney’s father two weeks before filing
deadline did not constitute extraordinary circum- possible to conclude, from these circumstanc-
stance for equitable tolling purposes); Kreutzer v.
Bowersox, 231 F.3d 460, 463 (8th Cir. 2000)
4
(holding that attorney’s confusion over applicabil- (...continued)
ity of § 2244(d)(1) did not justify equitable tolling), 597, 598 (7th Cir. 1999) (holding that attorney’s
cert. denied, 122 S. Ct. 145 (2001); Harris v. miscalculation of limitations period was not valid
Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000) basis for equitable tolling); Sandvik v. United
(holding that attorney’s mistaken interpretation of States, 177 F.3d 1269, 1272 (11th Cir. 1999)
§ 2244(d) limitation provision did not justify (holding that untimeliness resulting from attorney’s
equitable tolling); Taliani v. Chrans, 189 F.3d use of ordinary mail did not justify equitable
(continued...) tolling).
5
es, that the district court abused its discretion
in declining to invoke equitable tolling.
III.
The second question the district court cer-
tified is whether it is fundamentally unfair to
dismiss Cousin’s petition for failure to comply
with filing requirements without considering
the merits of his claims of innocence. The
one-year limitations period established by
§ 2244(d) contains no explicit exemption for
petitioners claiming actual innocence of the
crimes of which they have been convicted. As
a consequence, a petitioner’s claims of actual
innocence are relevant to the timeliness of his
petition if they justify equitable tolling of the
limitations period. We have previously held
that they do not. Felder v. Johnson, 204 F.3d
168, 171 (5th Cir. 2000). Therefore, Cousin’s
claims of innocence do not preclude the dis-
missal of his petition as untimely.
AFFIRMED.
6