Wilson v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 19, 2001
• Docket: 00-40483
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40483 Summary Calendar

KEARY DEMOND WILSON,

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 (6:99-CV-727)

April 16, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Keary Wilson appeals from the dismissal of his 28 U.S.C. §

2254 petition as time-barred. Pursuant to the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), Wilson had one year from the

date on which his state conviction became final in which to file

his federal habeas petition. 28 U.S.C. §2244(d)(1)(A). The time

during which Wilson’s state habeas petition was pending was not

counted toward that one-year period. See 28 U.S.C. § 2244(d)(2).

Barring application of the equitable tolling doctrine, Wilson’s

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. federal habeas petition, filed on 27 December 1999, had to have

been filed by 20 December 1999 to be timely.

The district court granted Wilson a certificate of

appealability (COA) solely on the question whether equitable

tolling applies to delayed notification of state-court decisions.

To the extent that Wilson has briefed other arguments supporting

the application of equitable tolling and alternative arguments

supporting his position that his petition was not untimely, we are

precluded from addressing their merits. See United States v.

Kimler, 150 F.3d 429, 431 (5th Cir. 1999) (appellate review of

uncertified issues inappropriate where no explicit request to

broaden COA). The sole issue before us is whether equitable

tolling applies in the light of the alleged delay in the state

court’s notification of the denial of Wilson’s habeas petition.

Wilson asserts the district court erred, and equitable tolling

applies, because his attorney did not receive the postcard

notifying him of the denial of Wilson’s state habeas writ until 15

November 1999, five days after the 10 November 1999 date of denial.

This court reviews a district court’s decision denying equitable

tolling for abuse of discretion. Fisher v. Johnson, 174 F.3d 710,

713 (5th Cir. 1999), cert. denied, 121 S. Ct. 1124 (2001).

In Ott v. Johnson, 192 F.3d 510, 513-14 (5th Cir. 1999), cert.

denied, 529 U.S. 1099 (2000), our court opined that the doctrine of

equitable tolling should be applied only if the relevant facts

present “sufficiently ‘rare and exceptional circumstances’” and

that “‘excusable neglect’ does not support equitable tolling”.

2 (Emphasis added.) Wilson was represented by counsel for both his

state and federal habeas proceedings. Wilson’s counsel filed his

federal habeas petition six weeks after receiving notice of the

Texas court’s denial of the state writ. The receipt of that

notice, post-marked 12 November 1999 and allegedly received 15

November 1999, was not substantially delayed. Cf. Phillips v.

Donnelly, 216 F.3d 508 (5th Cir. 2000) (holding equitable tolling

may be available where petitioner alleged receipt of notice denying

state writ four months after decision). Wilson’s facts do not

warrant application of the doctrine of equitable tolling.

AFFIRMED