UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41211
GREGORY ARTHUR OTT,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
October 21, 1999
Before POLITZ, DAVIS, and STEWART, Circuit Judges.
POLITZ, Circuit Judge:
Texas inmate Gregory Arthur Ott appeals the district court’s denial of his
habeas corpus petition under 28 U.S.C. § 2254. For the reasons assigned, we
affirm.
BACKGROUND
In 1978, Ott was convicted of murdering a Texas Ranger and was sentenced
to life imprisonment. This conviction was affirmed on direct appeal and became
final in July 1982.1 On April 23, 1997, Ott, represented by counsel, filed a state
habeas corpus application, challenging issues relating to the rescission of his parole
1
See Ott v. State, 627 S.W.2d 218 (Tex. App. 1981, pet. ref’d).
certificate and the validity of his conviction.2 On September 17, 1997, the Texas
Court of Criminal Appeals denied the application without written order.
On Tuesday, September 23, 1997, Ott, represented by counsel, filed a § 2254
petition raising the same issues as in the state habeas application. Counsel stated
that on the prior Saturday, September 20, 1997, he received a “white card” from the
Texas Court of Criminal Appeals postmarked September 18, 1997, noting that Ott’s
habeas application had been denied. Counsel stated that he mailed the § 2254
application for filing on Monday, September 22, 1997, the next business day after
receiving notification.
Adopting a report and recommendation by the magistrate judge, the district
court found that Ott had until April 24, 1997 to timely file a § 2254 application and
that the filing of the state court action on April 23, 1997 tolled the period for one
day. The court determined that the filing on September 23, 1997, after the denial
of the state application on September 17, 1997, was untimely. It also rejected Ott’s
argument that the limitations period should be tolled during the time allotted to
seek a petition for certiorari from the denial of his state habeas application. Finally,
the district court determined that equitable tolling should not apply in this case as
Ott had waited nineteen years before bringing his claims.
After dismissing his petition as time-barred, the district court granted a
certificate of appealability (“COA”) limited to the issues regarding the limitations
2
The April 1997 habeas petition was actually the second state habeas application. The
first state habeas action was filed in 1989. That habeas petition, which raised different issues
from the present petition, is not in the record and is not relevant to the disposition of this
case.
2
period and equitable tolling.
ANALYSIS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), there is a one-year limitations period for filing a writ of habeas corpus
by a person in state custody. Under 28 U.S.C. § 2244(d)(1)(A), the limitations
period commences from “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.”3
Moreover, “[t]he 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)(2).
For convictions final before the effective date of the AEDPA, we have
applied a one-year grace period allowing habeas petitioners until April 24, 1997 to
file their claims.4 As noted, however, under § 2244(d)(2) the time between Ott’s
filing of his state habeas application and its denial does not count against the one-
year limitations period.
Ott filed his state habeas application on April 23, 1997, one day before the
expiration of the grace period. The limitations period expired on Friday,
September 19, 1997, one day after the Texas Court of Criminal Appeals denied the
3
Although § 2244(d)(1) lists three other alternative events from which the limitations
period would begin, Ott agrees that the date of final judgment in § 2244(d)(1)(A) is the only
applicable provision here.
4
Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998).
3
habeas application on September 18, 1997.5 Ott asserts two bases that would
prevent his September 23, 1997 application from being deemed untimely filed.
First, he contends that the ninety days in which a state habeas petitioner may
petition the United States Supreme Court for a writ of certiorari, even if no petition
for certiorari is filed, should toll the limitations period. Second, he asserts that the
limitations period in this case should be extended by the doctrine of equitable
tolling.6
I
Ott first contends that § 2244(d)(2), which tolls the limitations period while
a “properly filed application for State post-conviction or other collateral review”
is pending, includes the ninety days in which a state habeas petitioner may file a
petition for writ of certiorari with the United States Supreme Court. He maintains
that expiration of the limitations period prior to the time in which he could seek
Supreme Court review would unfairly penalize those who desire to petition for
certiorari. We review this question of statutory construction de novo.7
We have not previously had an opportunity to consider this issue. We now
5
On appeal, Ott abandons the argument made in the district court that the three-day
allowance for acts conducted by mail, see Fed. R. Civ. P. 6(e), extended the limitations
period.
6
We note that although Ott has briefed six issues concerning the suspension, equal
protection, and due process clauses of the constitution, these issues were not included in the
COA granted by the district court. Even though Ott has briefed the issues, he has not
explicitly requested that we broaden the district court’s COA. Without an express request
to broaden the COA, one which we approved, we will not consider issues on which a COA
was denied. See United States v. Kimler, 150 F.3d 429 (5th Cir. 1998).
7
See United States v. Fitch, 137 F.3d 277 (5th Cir. 1998).
4
reject same. We agree with our colleagues in the Tenth Circuit that § 2244(d)(2)
does not toll the limitations period from the time of denial of state habeas relief by
the state high court until the time in which a petitioner could have petitioned the
United States Supreme Court for certiorari.8
First, unlike § 2244(d)(1)(A), which takes into account the time for filing a
certiorari petition in determining the finality of a conviction on direct review, §
2244(d)(2) contains no such provision. Rather, § 2244(d)(2) only tolls the period
for a properly filed petition for “State post-conviction or other collateral review.”
It is a fundamental tenet of statutory construction that Congress intended to exclude
language included in one section of a statute, but omitted from another section.9
We conclude and hold that a petition for writ of certiorari to the Supreme Court is
not an application for “State” review that would toll the limitations period. 10
Second, we also note that judicial efficiency does not require a petitioner to
begin federal habeas proceedings until the state conviction becomes final upon
direct review, which occurs upon denial of certiorari by the Supreme Court or
expiration of the period for seeking certiorari. For state post-conviction
proceedings, however, the post-conviction application becomes final after a
decision by the state’s high court. Requesting relief from the Supreme Court is not
8
See Rhine v. Boone, No. 98-6353, 1999 WL 459312, at * 2-3 (10th Cir. July 7, 1999).
See also United States v. DeTella, 6 F. Supp. 2d 780 (N.D. Ill. 1998) (holding that time for
seeking certiorari with Supreme Court does not toll limitations period under § 2244(d)(2)).
9
Hohn v. United States, 118 S. Ct. 1969 (1998).
10
See Rhine, 1999 WL 459312, at * 3 (holding that “State” modifies both the phrase
“post-conviction review” and the phrase “other collateral review”).
5
necessary for prosecuting state habeas relief and is irrelevant to federal habeas
jurisdiction. Thus, unlike direct review, there is no judicial interest in habeas
proceedings for tolling the limitations period for Supreme Court certiorari
petitions.11 Accordingly, the period for seeking a petition for certiorari does not toll
Ott’s limitations period under § 2244(d)(2).
II
Ott next maintains that the doctrine of equitable tolling should extend the
limitations period. We have held that the AEDPA’s limitations period is not
jurisdictional, but is subject to equitable tolling principles.12 We review the district
court’s decision not to invoke the doctrine of equitable tolling for abuse of
discretion.13
Although cautious not to apply the statute of limitations too harshly, we
recognize that the equitable tolling doctrine is to be applied only if the relevant
facts present sufficiently “rare and exceptional circumstances” that would warrant
application of the doctrine.14 We recently explained that 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,” and
11
See id.
12
Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998), cert. denied, 119 S. Ct. 1474 (1999).
13
Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999).
14
Davis, 158 F.3d at 811.
6
noted that “excusable neglect” does not support equitable tolling.15
Ott contends that it would be inequitable to apply the limitations period
because he mailed his federal habeas petition for filing on the first business day
after receiving notice of the denial of the state application. Moreover, Ott asserts
that Texas created an impediment to the timely filing of his petition by its
notification of habeas denials through mailed postcards.
We find no error in the district court’s decision not to apply the doctrine of
equitable tolling to the facts of this case. Ott was represented by counsel for both
his state and federal habeas applications. As the district court noted, Ott did not
challenge the parole board’s actions until some nineteen years after the underlying
conviction and fifteen years after the conviction became final. Further, we
underscore that the state habeas application was not filed until one day before the
expiration of the AEDPA’s one-year grace period, an action that necessarily
mandated a swift filing of the federal habeas application following the denial of the
state petition. This was a matter totally within the control of Ott. The state
application readily could have been filed a few days earlier, allowing an adequate
period for the filing of the federal petition after final denial of the state application.
Accordingly, we find that these are not “rare and exceptional” circumstances in
which equitable tolling is warranted.
Because Ott’s federal habeas corpus petition was not timely filed and
because equitable tolling does not apply in this case, the judgment appealed is
15
Coleman v. Johnson, No. 98-10394, 1999 WL 598607, at * 4 (5th Cir. Aug. 3, 1999)
(quoting Rashidi v. America President Lines, 96 F.3d 124,128 (5th Cir. 1996)).
7
AFFIRMED.
8