UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-10414
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JOHN E. SCOTT,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court for the
Northern District of Texas
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September 11, 2000
Before REAVLEY, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
John E. Scott, a Texas state prisoner, appeals the district
court’s dismissal without prejudice of his federal habeas petition
for failure to exhaust state remedies. Finding that his petition
was time-barred, we deny relief.
I. FACTUAL AND PROCEDURAL HISTORY
On July 23, 1996, Scott pleaded guilty to possession with
intent to deliver cocaine and was sentenced to 25 years of
imprisonment. Scott did not file a direct appeal.
On December 1, 1997, Scott filed a state habeas corpus
petition, alleging ineffective assistance of counsel, tainted
search warrants, a defective indictment, and insufficiency of the
evidence to support his conviction. Subsequently, Scott filed an
original application for a writ of mandamus in the Texas Court of
Criminal Appeals, complaining that his application for a state writ
of habeas corpus had not been forwarded to the Court of Criminal
Appeals. The Court of Criminal Appeals then issued an order that
resulted in the trial court designating the issues to be
considered. The trial court’s order further provided that it would
resolve the designated issues and enter findings of fact.
On February 22, 1999, while his application for state habeas
was pending, Scott filed a petition for federal habeas corpus in
district court. He argued that the evidence used against him was
illegally obtained, that the indictment was defective because a
member of the grand jury did not live in the jurisdiction of the
court, that the evidence was insufficient because no drugs were
found on his person, and that counsel was ineffective for failing
to raise any of these issues. He subsequently filed a motion to
show cause in federal district court in which he stated that his
state petition was still pending and argued that he did not have to
demonstrate exhaustion of his state remedies because he could show
cause and prejudice. At that point his state petition had been
2
pending for fourteen months, and, thus, Scott argued, his federal
petition should be considered to prevent a fundamental miscarriage
of justice.
The magistrate judge sua sponte found that all of Scott’s
claims were unexhausted and that, despite the length of time the
court was taking in reviewing Scott’s petition, Scott had not
demonstrated that the state corrective process was ineffective to
protect his rights.1 The magistrate judge therefore recommended
that Scott’s petition be dismissed without prejudice. Over Scott’s
objections, the district court adopted the findings and
recommendation of the magistrate judge and dismissed the petition
without prejudice for failure to exhaust. The district court
denied Scott’s motion for a certificate of appealability (COA).
This Court granted a COA on the issue whether Scott had exhausted
his state remedies and ordered the parties to brief the issue
whether Scott’s federal petition was timely.
II. ANALYSIS
We now determine whether Scott timely filed his petition for
federal habeas relief. Scott filed his federal petition on
February 22, 1999, which was after the April 24, 1996 effective
date of the Antiterrorism and Effective Death Penalty Act (AEDPA).
Accordingly, the AEDPA governs Scott’s federal petition. See
1
The magistrate judge thus did not serve the respondent with
Scott’s petition.
3
Graham v. Johnson, 168 F.3d 762, 775 (5th Cir. 1999).
In relevant part, 28 U.S.C. § 2244 provides that:
(d)(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
judgment of a State court. The limitation
period shall run from the latest of--
(A) the date on which the judgment 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;
* * *
(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.
On July 23, 1996, Scott was convicted in Texas state court
and received a sentence of 25 years of imprisonment. Rule 26.2(a)
of the Texas Rules of Appellate Procedure requires that a notice of
appeal must be filed within 30 days after the day sentence is
imposed. As previously set forth, Scott did not appeal his
conviction. His conviction therefore became final on August 22,
1996 (30 days after pleading guilty).
Applying the above-quoted § 2244, the one-year period of
limitation Scott had in which to file a federal habeas petition
4
expired on August 23, 1997. The district court did not raise this
affirmative defense, and the respondent did not file a response to
Scott’s petition because it was never served with his petition.
Although this Court has held that district courts may sua sponte
raise the one-year limitation period under AEDPA, see Kiser v.
Johnson, 163 F.3d 326, 329 (5th Cir. 1999), we have not expressly
held that circuit courts have the authority to do so.
We begin with the principle that this Court may affirm the
denial of habeas relief on any ground supported by the record. See
Fisher v. State of Texas, 169 F.3d 295, 299 (5th Cir. 1999). More
specifically, in Kiser, 163 F.3d at 329, we looked to “a long line
of precedent establishing the authority of courts to raise non-
jurisdictional affirmative defenses sua sponte in habeas cases.”
(citations omitted). We also relied on our precedent that held the
affirmative defense of statute of limitations may be raised sua
sponte in prisoner’s civil actions under 28 U.S.C. § 1915. Id.
Moreover, since Kiser, this Court has held that a Court of
Appeals may sua sponte conclude that a petitioner is procedurally
barred from raising a claim.2 Smith v. Johnson, 216 F.3d 521 (5th
Cir. 2000). We recognized that this Court previously had declined
to apply a procedural bar sua sponte, finding that the respondent
had waived the defense in district court. Id. (Fisher v. State of
2
Procedural default and expiration of limitation period
arguments are non-jurisdictional affirmative defenses. See Kiser,
163 F.3d at 329.
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Texas, 169 F.3d 295, 300-02 (5th Cir. 1999)). However, we also
recognized that in Fisher, we had “expressly left open the
possibility that this court may, in the appropriate circumstances,
apply the procedural bar sua sponte when the state has waived the
defense in the district court.” We stated that the pertinent
concerns were whether the petitioner had notice of the issue and a
reasonable opportunity to argue against the bar, and whether the
state had “intentionally waived the defense.” Id. (citing Fisher,
169 F.3d at 301-02). Because the petitioner had been given notice
and an opportunity to argue against the bar and the state had not
intentionally waived the defense, we deemed it appropriate for this
Court to apply a procedural bar.
In the instant case, the respondent certainly did not waive or
forfeit the affirmative defense of limitations in the district
court because it was not served with Scott’s petition due to the
district court’s decision to dismiss the petition for failure to
exhaust state remedies. Further, Scott was given notice of the
limitations issue when this Court issued a COA. Also, like the
petitioner in Smith, Scott has been given an opportunity to argue
against the limitations issue. We therefore hold that, under these
circumstances, it is proper for us to sua sponte apply the defense
of limitations under AEDPA.
Scott argues that he is entitled to equitable tolling.
Equitable tolling is appropriate in “rare and exceptional
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circumstances.” Fisher v. Johnson, 174 F.3d 710, 712 (5th Cir.
1999). He claims that the state created an impediment to his
filing a state habeas application because the state (1) confiscated
his legal materials on August 5, 1996, and (2) the legal library
was inadequate. Scott admits, however, that such impediments were
removed as of February 25, 1997, which is approximately six months
prior to the expiration of the limitation period. Accordingly,
these arguments do not establish that Scott is entitled to
equitable tolling. See Coleman v. Johnson, 184 F.3d 398, 401 (5th
Cir. 1999) (explaining that for equitable tolling to apply, the
petitioner must diligently pursue relief).3 Finally, Scott’s state
habeas application did not toll the limitation period under §
2244(d)(2) because it was not filed until after the period of
limitation had expired.
For the above reasons, we conclude that Scott’s federal habeas
petition is time-barred. We therefore MODIFY the district court’s
judgment and DISMISS the petition WITH PREJUDICE.
3
We note that an inadequate law library does not constitute
a “rare and exceptional” circumstance warranting equitable tolling.
Felder v. Johnson, 204 F.3d 168, 171-73 (5th Cir. 1999).
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