IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-50566
_______________
THOMAS JAMES FISHER,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON,
Director, Texas Department of
Criminal Justice, Institutional Division,
Respondent-Appellee.
_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
May 24, 1999
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Thomas James Fisher appeals the dismissal of his 28 U.S.C.
§ 2254 habeas petition as time-barred, contending that the district
court abused its discretion by refusing equitably to toll the
limitation period. Finding no error, we affirm.
I.
Fisher was convicted of murder and sentenced to serve thirty
years in prison. His conviction was affirmed by the Texas Court of
Appeals and, on petition for discretionary review, by the Texas
Court of Criminal Appeals. He filed a state habeas application,
and the trial court recommended denial without a hearing. The
Texas Court of Criminal Appeals denied the application without
written order.
Fisher mailed a pro se habeas petition to the federal district
court in which he alleged various constitutional errors. The state
moved to dismiss, averring that the filing was time-barred under
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”).1 Fisher objected to the state's calculations of time
and argued that the limitation period should be tolled for various
reasons. The court granted the motion to dismiss, agreeing that
AEDPA's statute of limitations had run.
Fisher appeals. The district court granted his application to
proceed in forma pauperis and granted his application for a
certificate of appealability (“COA”) on whether the court should
have equitably tolled the limitation period until he had actual
notice of AEDPA and during his psychiatric confinement.
II.
A.
Fisher filed his § 2254 petition in 1997, after AEDPA's
1
Pub. L. No. 104-132, 110 Stat. 1214. AEDPA became effective on April 24,
1996.
2
April 24, 1996, effective date, and hence his claim is governed by
its provisions. Lindh v. Murphy, 521 U.S. 320, 326 (1997). AEDPA
establishes, for the first time, an explicit limitation period for
state prisoners filing federal habeas petitions. See Lonchar v.
Thomas, 517 U.S. 314, 327 (1996). Congress allows “a person in
custody pursuant to the judgment of a state court” one year to file
a § 2254 petition. See 28 U.S.C. § 2244(d)(1).2 The statute of
limitations begins to run from the latest of several possible
events; the date Fisher's state judgment became final is the only
2
The limitations provision provides:
(1) A 1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to the
judgement of a State court. The limitation period shall run from
the latest ofSS
(A) the date on which the judgment of conviction became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.
28 U.S.C. § 2244(d).
3
relevant event here. See id. § 2244(d)(1)(A).
Fisher's judgment became final in 1993, prior to AEDPA's
effective date. Retroactively applying AEDPA would time-bar his
petition as of AEDPA's 1996 effective date. In accord with AEDPA's
language, and to prevent the apparent inequity of such a technical
result, we have allowed a prisoner whose conviction became final
before AEDPA's effective date a reasonable length of timeSSa grace
periodSSduring which to file his petition.3 Drawing on
§ 2244(d)(1), we have decided that one year presumptively
constitutes a reasonable time. See Flanagan, 154 F.3d at 200;
Flores, 135 F.3d at 1006. This would make Fisher's petition timely
if filed on or before April 24, 1997.4
As the district court recognized, however, limitations should
be tolled pursuant to § 2244(d)(2) during the time that properly
filed state post-conviction or other collateral review proceedings
are pending.5 The time from when Fisher properly filed his state
habeas application until when it was denied does not count against
3
See Flanagan v. Johnson, 154 F.3d 196, 200 n.2 (5th Cir. 1998); see also
United States v. Flores, 135 F.3d 1000, 1004-05 (5th Cir. 1998) (applying same to
28 U.S.C. § 2255 motions), cert. denied, 119 S. Ct. 846 (1999).
4
See Flanagan, 154 F.3d at 202 (applying FED.R.CIV.P. 6(a) to decide that
the effective date does not fall within the one-year period, and hence petitions
filed “on or before April 24, 1997[,] are timely.”).
5
See Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998) (applying
§ 2244(d)(2)'s tolling provision to one-year “reasonableness period” under Flanagan
and Flores).
4
the limitation period. See § 2244(d)(2).6
Fisher filed his state habeas application on April 22, 1997,
two days before the initial one-year statute of limitations was to
expire. The state courts denied relief, thus terminating the
pending application, on August 27, 1997.7 Adding to that date the
two days within the limitation period remaining before the state
application was filed, Fisher needed to file his federal petition
by August 29, 1997, but he did so on September 15, 1997.8
III.
Fisher argues that the district court should have equitably
tolled the limitation period. In Davis v. Johnson, 158 F.3d 806,
6
See also Fields, 159 F.3d at 916 (holding that, because state post-
conviction proceedings were pending during reasonable one-year limitation period
for 91 days from filing to denial, petitioner had additional 91 days after
April 24, 1997, to file); Flanagan, 154 F.3d at 199 & n.1 (concluding petitioner
had one year from denial of state habeas application filed before, and pending
on, AEDPA's effective date to file federal petition).
7
Fisher claims his state application for post-conviction relief was
“pending” before the state courts longer than this, tolling the limitation period
by 12 more days. At the front end, Fisher argues he mailed his state application
on April 17; it should be deemed filed then under the "mailbox rule" (although
he does not explain how the application can be deemed “pending,” as § 2244(d)(2)
requires, before it reaches the court). At the back end, he claims he did not
receive notice that the application was denied until September 3; under a notice
rule, the tolling should continue until then (although he again fails to explain
how the application “is pending” after it is denied). Because the district court
did not grant a COA on these issues, we reserve them. See Lackey v. Johnson, 116
F.3d 149, 151 (5th Cir. 1997). We note, however, that, even if Fisher were
correct on both fronts, the 12 additional days would not alter the outcome.
8
The district court actually recorded the application as filed on
September 22, 1997; but Fisher mailed his application on September 15. As
recognized by the parties, we treat the date a pro se prisoner deposits a federal
petition in the prison mail system as the filing date for purposes of AEDPA's
statute of limitations. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998)
(per curiam).
5
811 (5th Cir. 1998), we held that AEDPA's filing provision is not
jurisdictional but, instead, is a statute of limitations that, like
all limitation statutes, could be equitably tolled. Id.; see also
Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir. 1998), cert.
denied, 119 S. Ct. 847 (1999).
The district court declined to invoke equitable tolling. Such
a decision is left to the district court's discretion; we review,
therefore, only for abuse of discretion. See Barrs v. Sullivan,
906 F.2d 120, 122 (5th Cir. 1990).9
A.
As a discretionary doctrine that turns on the facts and
circumstances of a particular case, equitable tolling does not lend
itself to bright-line rules, but we draw on general principles to
guide when equitable tolling is appropriate. We must be cautious
not to apply the statute of limitations too harshly. “Dismissal of
a first habeas petition is a particularly serious matter, for that
dismissal denies the petitioner the protections of the Great Writ
entirely, risking injury to an important interest in human
liberty.” Lonchar, 517 U.S. at 324.
9
See also FDIC v. Dawson, 4. F.3d 1303, 1308 (5th Cir. 1993) (applying
de novo review rather than abuse of discretion because court denied equitable
tolling as a matter of law rather than in exercise of discretion); accord Truitt
v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998); Clark v. Runyon, 116 F.3d
275, 277 (7th Cir. 1997); Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995).
But cf. Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir. 1998)
(en banc) (finding decision to apply equitable tolling under AEDPA “not clear
error as a matter of law”).
6
At the same time, the Supreme Court has expressed deference to
the rules that Congress fashioned concerning habeas. See id.
at 321-23. Congress enacted AEDPA, in part, to curb abuse of the
writ of habeas corpus. See H.R. Conf. Rep. No. 104-518, at 111
(1996), reprinted in 1996 U.S.C.C.A.N. 944. This purpose manifests
itself in the one-year statute of limitations, which will speed up
the habeas process considerably.10
The court's judicious discretion equitably to toll helps
safeguard habeas while still fulfilling Congress's express desire
to accelerate the process. A court can allow an untimely petition
to proceed under the doctrine of equitable tolling “in
extraordinary circumstances.” Flanagan, 158 F.3d at 810. We and
the district courts, guided by precedent, must examine each case on
its facts to determine whether it presents sufficiently “rare and
exceptional circumstances” to justify equitable tolling. Id.
at 811.11
10
See Flanagan, 154 F.3d at 198 (noting that “AEDPA severely constricts
the time period allowed for filing a federal habeas corpus action,” compared to
pre-AEDPA period, when a “prisoner could wait almost a decade to file his habeas
petition”) (quotation omitted); accord Miller v. New Jersey State Dep't of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (explaining that AEDPA speeds up
process to curb abuse of writ).
11
Other circuits that have addressed equitable tolling under AEDPA have
been no more specific. For example, the Ninth Circuit explains that equitable
tolling is appropriate under AEDPA “if extraordinary circumstances beyond a
prisoner's control make it impossible to file a petition on time.” Calderon,
163 F.3d at 541 (quotation omitted). The Third Circuit finds tolling proper
“only when the principles of equity would make [the] rigid application [of a
limitation period] unfair,” generally when “the petitioner has in some
extraordinary way . . . been prevented from asserting his or her rights” despite
exercising “due diligence in investigating and bringing the claims.” Miller,
(continued...)
7
For example, in Cantu-Tzin, the only case in which we have
applied equitable tolling to AEDPA,12 we addressed whether the
state's failure to appoint competent habeas counsel, forcing the
petitioner to represent himself, justified equitably tolling the
limitation period to allow an untimely petition. We held that,
with facts “wholly unfavorable to the petitioner,” “the fully-
developed record demonstrates the unavailability of equitable
tolling of the AEDPA limitations period.” Cantu-Tzin, 162 F.3d at
299-300. Cantu-Tzin dismissed one attorney and sought to represent
himself and failed diligently to pursue his § 2254 petition despite
awareness of the limitation period. See id. This “disdain for and
lack of cooperation with state access-to-counsel procedures and the
AEDPA deadline” meant equity did not favor tolling. Id. at 297.
11
(...continued)
145 F.3d at 618-19 (alterations in original; quotations omitted). We look to our
non-AEDPA cases for further elucidation of when to toll. See Rashidi v. American
President Lines, 96 F.3d 124, 127 (5th Cir. 1996) (“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.”); Ynclan v. Department of the Air Force, 943 F.2d 1388, 1392-93 (5th
Cir. 1991) (delays by the court in filing while related motions pending); Loeber
v. Bay Tankers, Inc., 924 F.2d 1340, 1343 (5th Cir. 1991) (when tolling does not
defeat purpose of encouraging diligence and injustice to plaintiff would
otherwise result); Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989)
(must show diligence, because “equity is not intended for those who sleep on
their rights.”); cf. Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th
Cir. 1991) (“lack of knowledge of the filing deadlines,” “lack of
representation,” “unfamiliarity with the legal process,” and “ignorance of legal
rights” generally do not justify tolling).
12
In Davis, although we held that equitable tolling was appropriate under
AEDPA, we assumed, without deciding, that the petitioner's circumstances would
justify it. See Davis, 158 F.3d at 808 n.2.
8
B.
Fisher points to two circumstances. First, he did not receive
notice of AEDPA's statute of limitations until June 9, 1996, forty-
three days after AEDPA's effective date, because a copy of AEDPA
did not arrive in the prison library until that day. Second, he
claims the statute should be tolled for the seventeen days he spent
confined in a special unit for psychiatric evaluation, without his
glasses and without access to legal materials. Because Fisher
filed only seventeen days late, equitably tolling for either reason
would render his petition timely.
1.
Fisher requests that the statute of limitations be equitably
tolled for forty-three days, the time between AEDPA's effective
date, when the statute began to run for him, and the day on which
he received actual notice of AEDPA. We disagree; this does not
present a rare and exceptional circumstance that justifies
equitable tolling.
First, ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.13 We recognize
that Fisher's incarceration prevented him from knowing sooner of
13
Cf. Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992) (holding
that neither prisoner's pro se status nor ignorance of the law constitutes
“cause” for failing to include legal claim in prior petition); Barrow, 932 F.2d
at 478 (holding that “lack of knowledge of the filing deadlines” and “lack of
representation” do not justify equitable tolling).
9
AEDPA's limitation period; even due inquiry could not have yielded
the necessary knowledge. Nonetheless, we are wary of finding it
sufficient to toll the limitation period.
Second, petitioner's circumstance is not rare. Our one-year
grace period for those incarcerated as of AEDPA's effective date
affects hundreds of prisoners. Most likely, not a single one of
them learned of AEDPA on its effective dateSSits enactment date.
When we formulated the rule, however, we found one year from the
effective date a reasonable period of time, regardless of this
obvious delay in notice to prisoners.
Furthermore, Congress knew AEDPA would affect incarcerated
individuals with limited access to outside information, yet it
failed to provide any tolling based on possible delays in notice.
In the face of Congressional silence, we are reticent to create
this type of tolling judicially. Although we would apply it here
under the rubric of equitable tolling, the same concept would apply
equally to many other prisoners and in different variations of
delayed information, becoming a judicial tolling rule. Such broad
decisions are for Congress, not equity.
Finally, equity simply does not call for tolling on these
facts. Even after learning of AEDPA's limitation period, Fisher
had 322 days to complete his § 2254 petition. That is more than
enough time. See Covey, 865 F.2d at 662 (“[E]quity is not intended
10
for those who sleep on their rights.”).14
In the right circumstances, a delay in receiving information
might call for equitable tollingSSsuch as if the prison did not
obtain copies of AEDPA for months and months, or if an essential
piece of information was delayed near the filing deadline. That is
not the case here. Fisher has not shown a rare and exceptional
circumstance that calls for equity to intervene.
2.
In the alternative, Fisher asks us to toll the limitation
period for the seventeen days he spent in a psychiatric ward. On
September 6, 1996, he was transferred for evaluation and care after
turning violent as a result of a post-traumatic stress syndrome
attack. He was confined, medicated, separated from his glasses and
hence rendered legally blind, and denied meaningful access to the
14
Fisher relies on our rule that a statute of limitations should be tolled
if the plaintiff demonstrates that essential information could not be found by
diligent inquiry. We apply this rule to those who could not discover in time the
factual predicate of their claim. See, e.g., Pacheco v. Rice, 966 F.2d 904,
906-07 (5th Cir. 1992) (“Equitable tolling is appropriate where, despite all due
diligence, a plaintiff is unable to discover essential information bearing on the
existence of his claim.”). Congress already has addressed this in AEDPA's
statutory tolling provisions. See 28 U.S.C. § 2244(d)(1)(D). Fisher also points
to our reliance in Flores on St. Louis v. Texas Worker's Compensation Comm'n,
65 F.3d 43, 44 (5th Cir. 1995), where we found no inequity in applying a new,
shortened statute of limitations, in part because the plaintiff had notice of the
amended period. But Flores turns on allowing a habeas petitioner a reasonable
amount of time, not on notice. See Flores, 135 F.3d at 1004 (“It is essential
that such statutes allow a reasonable time after they take effect for the
commencement of suits upon existing causes of action.”) (quoting Wilson v.
Iseminger, 185 U.S. 55, 62 (1902)); id. (noting that shortened period in
St. Louis “still allowed the plaintiff a reasonable time within which to pursue
his claim in court.”). Here, Fisher's year was a reasonable amount of time,
despite the delay at the beginning.
11
courts. He was returned to his regular facility on September 23,
1996. Again, although equity sometimes might favor tolling in
similar circumstances, it does not here.
We have recognized the possibility that mental incompetency
might support equitable tolling of a limitation period. See Hood
v. Sears, Roebuck & Co., 168 F.3d 231, 232-33 (5th Cir. 1999) (and
cases cited therein). Combined with forced confinement and
medication, no access to legal materials, and the temporary loss of
one's glasses, a pro se petitioner such as Fisher simply cannot
pursue his legal rights during such a period. But a brief period
of incapacity during a one-year statute of limitations, even though
rare, does not necessarily warrant equitable tolling.
The period during which Fisher could not work on his federal
habeas petition, although outcome determinative here, is not a
significant length of time. More importantly, he still had over
six months to complete his federal habeas petition after his return
to his usual quarters.15 If this event had occurred shortly before
the required filing, Fisher would have a stronger case. But
considering it occurred at a time so remote to his deadline, and
absent a showing that he diligently pursued his application the
remainder of the time and still could not complete it on time,
15
Fisher still needed to complete his state habeas application during this
time, but that does not excuse his tardiness. He had several years to complete
that petition, during which he sat on his federal rights. Even if he could not
file the state application until he received a transcript sometime in 1996, he
could have been almost ready to file when it arrived, leaving himself several
months to complete the § 2254 petition after his state application was denied.
12
equity does not require tolling.
AFFIRMED.16
16
Fisher's motion to strike the state's brief is DENIED.
13