United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 9, 2006
Charles R. Fulbruge III
Clerk
No. 03-41186
Summary Calendar
CARL RAYMOND DOLAN,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CV-223
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Carl Raymond Dolan, Texas prisoner # 1004499, seeks a
certificate of appealability (“COA”) to appeal the dismissal of
his 28 U.S.C. § 2254 petition, wherein he challenged his
conviction for aggravated sexual assault. The district court
dismissed Dolan’s petition as time-barred by the one-year
limitations period of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d).
*
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this opinion should not be published and is not precedent except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. 03-41186
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To obtain a COA, a prisoner must make a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2);
see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “When the
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, 484 (2000).
Dolan challenges the district court’s determination that his
conviction became final on October 21, 2001, which is 30 days
after the state appellate court affirmed the conviction on direct
appeal and the date that the statutory time for filing a petition
for discretionary review (“PDR”) expired. Under 28 U.S.C.
§ 2244(d), the limitations period commences on the date that the
judgment in question “became final by the conclusion of direct
review or the expiration of the time for seeking such review.”
28 U.S.C. § 2244(d)(1)(A)(emphasis added). Under Texas law, “a
PDR is considered to be part of the direct review process, which
ends when the petition is denied or when the time available for
filing lapses.” Salinas v. Dretke, 354 F.3d 425, 428 (5th Cir.),
cert. denied, 541 U.S. (2004). In Dolan’s case, the time
available for filing a PDR lapsed when the extension of time
No. 03-41186
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granted by the Texas Court of Criminal Appeals for filing a PDR
expired on December 21, 2001. Thus, the district court erred in
finding that Dolan’s conviction became final before that date.
Dolan had one year, or until December 21, 2002, to file his
federal petition. Dolan filed a state habeas application on
December 15, 2001, thereby stopping the federal clock with six
days remaining. See 28 U.S.C. § 2244(d)(2). The federal
limitations period remained tolled until the state habeas
application was denied on May 7, 2003. Because Dolan did not
file his 28 U.S.C. § 2254 petition until May 20, 2003, the
petition was time-barred absent tolling.
Dolan argues that under the “mailbox rule” his state habeas
application should be deemed filed on December 5, 2002, when he
presented it to prison authorities for mailing. We have already
rejected the application of the mailbox rule for determining the
filing dates of state habeas corpus petitions. See Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999).
Dolan argues further that he is entitled to equitable
tolling of the limitations period for (1) the delay between the
date he presented his state habeas application to prison
authorities for mailing and the date when the application was
stamped in the state court, and (2) the delay from the date that
the state habeas court denied his application and the date that
he received notice that the application had been denied.
Equitable tolling may be appropriate for these delays. See
No. 03-41186
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Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), reh’g granted
and modified in part on other grounds, 223 F.3d 797 (2000);
Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).
The district court did not address Dolan’s equitable
tolling arguments, however, and we have no district court
decision denying equitable tolling to review. We conclude that
Dolan has shown that reasonable jurists would find it debatable
whether the district court’s procedural ruling was correct. See
Slack, 529 U.S. at 484. Based on the materials of record, it is
impossible to determine whether reasonable jurists would also
debate whether the claims raised by Dolan in his 28 U.S.C. § 2254
petition are valid claims of a constitutional deprivation. See
Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). We
therefore GRANT a COA, VACATE the district court’s judgment, and
REMAND the matter to the district court to consider in the first
instance Dolan’s equitable tolling claims. See Whitehead v.
Johnson, 157 F.3d 384, 388 (5th Cir. 1998). The district court
should determine inter alia when Dolan first received notice of
the denial of his state habeas application and whether he
diligently pursued his federal habeas rights. See Phillips,
216 F.3d at 511. Dolan bears the burden on remand to prove the
factual predicates for equitable tolling. Phillips, 223 F.3d at
797. If the district court determines that equitable tolling is
warranted, it should then consider the merits of the petition.
COA GRANTED; VACATED and REMANDED.