UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-50811
JAMES CALVIN LEWIS,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee. _________________________________________________________________
Appeal from the United States District Court for the Western District of Texas (SA-99-CV-1411-OG) _________________________________________________________________ October 15
Before BARKSDALE and STEWART, Circuit Judges, and DUPLANTIER,
District Judge1.
PER CURIAM:2
Claiming the one-year Antiterrorism and Effective Death
Penalty Act (AEDPA) limitations period should be equitably tolled
because he allegedly never received his attorney’s letter advising his direct appeal had been denied, James Calvin Lewis appeals the
dismissal of his habeas petition. AFFIRMED.
1 District Judge of the Eastern District of Louisiana, sitting by designation. 2 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.
Lewis was convicted of aggravated sexual assault of a child
and sentenced to 99 years’ imprisonment. The Texas appellate court
affirmed his conviction on 12 December 1996. Lewis’ petition for
discretionary review (PDR) with the Texas Court of Criminal Appeals
was denied on 7 May 1997. On 28 September 1999, Lewis filed an
application for state habeas relief; it was denied on 23 November
1999.
On 3 December 1999, Lewis filed for federal habeas relief.
Respondent moved to dismiss, on the basis the petition was untimely
under AEDPA. See 28 U.S.C. § 2244 (d). The magistrate judge
concluded Lewis’ conviction became final on 5 August 1997 — 90 days
after the PDR denial, which was the final day for filing for review
by the Supreme Court of the United States. See Ott v. Johnson, 192
F.3d 510, 513 (5th Cir. 1999)(holding 28 U.S.C. § 2244(d)(1)(A)
“takes into account the time for filing a certiorari petition in
determining the finality of a conviction on direct review....”),
cert. denied, 529 U.S. 1099 (2000). Accordingly, the magistrate
judge concluded the one-year limitations period began running on
that date.
That period is tolled while any properly filed State post-
conviction claim is pending. 28 U.S.C. § 2244(d)(2). But, because
Lewis did not file his state petition until 28 September 1999, the
magistrate judge concluded: the limitations period had run; and,
therefore, Lewis’ federal petition was untimely. See 28 U.S.C. §§
2244(d)(1)(A) and (d)(2). Lewis, however, asserted the period
2 should be equitably tolled because he did not receive notice of the
7 May 1997 PDR denial until September 1999.
According to Lewis, on 7 May 1997, his attorney mailed him a
letter, advising the PDR had been denied. Lewis claims that he
never received the letter and that jail records reflect he received
no mail from his attorney in May or June 1997. On 17 August 1999,
Lewis wrote to his attorney, inquiring about the PDR status. His
attorney, after checking Lewis’ file, responded on 13 September
1999 and confirmed the 7 May 1997 denial. Approximately two weeks
later, on 28 September 1999, Lewis’ attorney filed Lewis’ state
habeas petition.
The magistrate judge recommended against equitable tolling on,
inter alia, Lewis’ lack of diligence in seeking habeas relief. In
considering Lewis’ objections to the magistrate judge’s
recommendations, the district court concluded, citing Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 529 U.S.
1057 (2000): equitable tolling does not apply for instances of
excusable neglect; it applies primarily where a plaintiff is misled
by the State about his action or is “prevented in some
extraordinary way from asserting his rights”; and Lewis’ was not
such a situation. The district court also declined to equitably
toll the limitations period because Lewis had not been diligent, as
evidenced by his waiting more than two years after the PDR denial
to inquire about its status.
Our court granted Lewis a certificate of appealability on
whether he is entitled to equitable tolling of the limitations
period.
3 II.
The district court’s decision not to equitably toll the
limitations period is reviewed for an abuse of discretion. United
States v. Patterson, 211 F.3d 927, 931 (5th Cir. 2000); Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 121 S.
Ct. 1124 (2001). Of course, to the extent the district court
denied equitable tolling as a matter of law, we review that
conclusion de novo. Fisher, 174 F.3d at 713 n.9 (citing FDIC v.
Dawson, 4 F.3d 1303, 1308 (5th Cir. 1993), cert. denied, 512 U.S.
1205 (1994)).
Because the limitations period is not jurisdictional, it is
subject to equitable tolling. Davis v. Johnson, 158 F.3d 806, 810
(5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Only in
“‘rare and exceptional circumstances’”, however, is such tolling
appropriate. Fisher, 174 F.3d at 713. Such relief may issue
“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 the “‘garden
variety claim of excusable neglect’ does not support equitable
tolling”. Coleman, 184 F.3d at 402 (internal quotations and
citations omitted). We have also held: “In order for equitable
tolling to apply, the applicant must diligently pursue his § 2254
relief”. Id. at 403. It goes without saying that “‘equity is not
intended for those who sleep on their rights’”. Id. (quoting
Fisher, 174 F.3d at 713 n.11). “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
4 purpose manifests itself in the one-year statute of limitations,
which will speed up the habeas process considerably.” Fisher, 174
F.3d at 713. Obviously, a petitioner’s lack of diligence is
contrary to this AEDPA provision.
Lewis does not claim Respondent contributed to the alleged
loss of the 7 May 1997 letter from his attorney about the PDR
denial. Therefore, to demonstrate his is the requisite rare and
exceptional circumstance, Lewis must show his not receiving the
letter interfered in some exceptional way with his pursuing habeas
relief. But, even assuming arguendo he has made such a showing,
Lewis must also demonstrate he was diligent in pursuing habeas
relief.
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-50811
JAMES CALVIN LEWIS,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee. _________________________________________________________________
Appeal from the United States District Court for the Western District of Texas (SA-99-CV-1411-OG) _________________________________________________________________ October 15
Before BARKSDALE and STEWART, Circuit Judges, and DUPLANTIER,
District Judge1.
PER CURIAM:2
Claiming the one-year Antiterrorism and Effective Death
Penalty Act (AEDPA) limitations period should be equitably tolled
because he allegedly never received his attorney’s letter advising his direct appeal had been denied, James Calvin Lewis appeals the
dismissal of his habeas petition. AFFIRMED.
1 District Judge of the Eastern District of Louisiana, sitting by designation. 2 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. I.
Lewis was convicted of aggravated sexual assault of a child
and sentenced to 99 years’ imprisonment. The Texas appellate court
affirmed his conviction on 12 December 1996. Lewis’ petition for
discretionary review (PDR) with the Texas Court of Criminal Appeals
was denied on 7 May 1997. On 28 September 1999, Lewis filed an
application for state habeas relief; it was denied on 23 November
1999.
On 3 December 1999, Lewis filed for federal habeas relief.
Respondent moved to dismiss, on the basis the petition was untimely
under AEDPA. See 28 U.S.C. § 2244 (d). The magistrate judge
concluded Lewis’ conviction became final on 5 August 1997 — 90 days
after the PDR denial, which was the final day for filing for review
by the Supreme Court of the United States. See Ott v. Johnson, 192
F.3d 510, 513 (5th Cir. 1999)(holding 28 U.S.C. § 2244(d)(1)(A)
“takes into account the time for filing a certiorari petition in
determining the finality of a conviction on direct review....”),
cert. denied, 529 U.S. 1099 (2000). Accordingly, the magistrate
judge concluded the one-year limitations period began running on
that date.
That period is tolled while any properly filed State post-
conviction claim is pending. 28 U.S.C. § 2244(d)(2). But, because
Lewis did not file his state petition until 28 September 1999, the
magistrate judge concluded: the limitations period had run; and,
therefore, Lewis’ federal petition was untimely. See 28 U.S.C. §§
2244(d)(1)(A) and (d)(2). Lewis, however, asserted the period
2 should be equitably tolled because he did not receive notice of the
7 May 1997 PDR denial until September 1999.
According to Lewis, on 7 May 1997, his attorney mailed him a
letter, advising the PDR had been denied. Lewis claims that he
never received the letter and that jail records reflect he received
no mail from his attorney in May or June 1997. On 17 August 1999,
Lewis wrote to his attorney, inquiring about the PDR status. His
attorney, after checking Lewis’ file, responded on 13 September
1999 and confirmed the 7 May 1997 denial. Approximately two weeks
later, on 28 September 1999, Lewis’ attorney filed Lewis’ state
habeas petition.
The magistrate judge recommended against equitable tolling on,
inter alia, Lewis’ lack of diligence in seeking habeas relief. In
considering Lewis’ objections to the magistrate judge’s
recommendations, the district court concluded, citing Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 529 U.S.
1057 (2000): equitable tolling does not apply for instances of
excusable neglect; it applies primarily where a plaintiff is misled
by the State about his action or is “prevented in some
extraordinary way from asserting his rights”; and Lewis’ was not
such a situation. The district court also declined to equitably
toll the limitations period because Lewis had not been diligent, as
evidenced by his waiting more than two years after the PDR denial
to inquire about its status.
Our court granted Lewis a certificate of appealability on
whether he is entitled to equitable tolling of the limitations
period.
3 II.
The district court’s decision not to equitably toll the
limitations period is reviewed for an abuse of discretion. United
States v. Patterson, 211 F.3d 927, 931 (5th Cir. 2000); Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 121 S.
Ct. 1124 (2001). Of course, to the extent the district court
denied equitable tolling as a matter of law, we review that
conclusion de novo. Fisher, 174 F.3d at 713 n.9 (citing FDIC v.
Dawson, 4 F.3d 1303, 1308 (5th Cir. 1993), cert. denied, 512 U.S.
1205 (1994)).
Because the limitations period is not jurisdictional, it is
subject to equitable tolling. Davis v. Johnson, 158 F.3d 806, 810
(5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Only in
“‘rare and exceptional circumstances’”, however, is such tolling
appropriate. Fisher, 174 F.3d at 713. Such relief may issue
“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 the “‘garden
variety claim of excusable neglect’ does not support equitable
tolling”. Coleman, 184 F.3d at 402 (internal quotations and
citations omitted). We have also held: “In order for equitable
tolling to apply, the applicant must diligently pursue his § 2254
relief”. Id. at 403. It goes without saying that “‘equity is not
intended for those who sleep on their rights’”. Id. (quoting
Fisher, 174 F.3d at 713 n.11). “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
4 purpose manifests itself in the one-year statute of limitations,
which will speed up the habeas process considerably.” Fisher, 174
F.3d at 713. Obviously, a petitioner’s lack of diligence is
contrary to this AEDPA provision.
Lewis does not claim Respondent contributed to the alleged
loss of the 7 May 1997 letter from his attorney about the PDR
denial. Therefore, to demonstrate his is the requisite rare and
exceptional circumstance, Lewis must show his not receiving the
letter interfered in some exceptional way with his pursuing habeas
relief. But, even assuming arguendo he has made such a showing,
Lewis must also demonstrate he was diligent in pursuing habeas
relief.
The district court held Lewis was not diligent due to the
lapsed time between his PDR denial and his inquiry to his attorney.
The cases in this circuit that have considered diligence vel non in
this context have focused, however, on the petitioner’s efforts
after the alleged impediment no longer existed. See Phillips v.
Donnelly, 216 F.3d 508, 511 (5th Cir.) (petitioner diligent where
he filed for out of time appeal within three days of learning state
habeas petition had been denied and filed federal habeas petition
within one month of denial of out of time appeal), reh’g granted in
part on other grounds, 223 F.3d 797 (5th Cir. 2000); Coleman, 184
F.3d at 403 (petitioner not diligent where he waited six months to
file federal habeas petition after learning of denial of his state
post conviction application); Fisher, 174 F.3d at 715 (petitioner
not diligent where he had 322 days after learning of AEDPA
limitations period to file federal habeas petition).
5 Regarding diligence vel non, the district court correctly
considered Lewis’ actions before he became aware of his PDR denial.
Were we to hold otherwise, Lewis could theoretically have waited
another two and one-half years to make inquiry and still be
considered diligent, so long as he acted promptly after becoming
aware of the denial.
Concomitantly, the district court did not abuse its discretion
in determining non-diligence on the part of Lewis. Lewis concedes
that he waited approximately two and one-half years after filing
his PDR to inquire about its status. Obviously, this is not the
diligent pursuit of habeas relief. Instead, having apparently
heard nothing from his attorney, Lewis should have inquired at a
far earlier date about the PDR’s status. One cannot remain idle
for such a length of time and then legitimately claim entitlement
to equitable relief. Therefore, the district court did not abuse
its discretion in declining to equitably toll the limitations
III.
For the foregoing reasons, the judgment is
AFFIRMED.