Felder v. Johnson, 98-21050

• Decision Date: 09 February 2000
• Docket Number: No. 98-21050,98-21050
• Citation: 204 F.3d 168
• Parties: (5th Cir. 2000) LESLIE PARNELL FELDER Petitioner - Appellant v. GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION Respondent - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 168

204 F.3d 168 (5th Cir. 2000)

LESLIE PARNELL FELDER Petitioner - Appellant v. GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION Respondent - Appellee

No. 98-21050

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

February 9, 2000

REVISED March 6, 2000

Appeal from the United States District Court for the Southern District of Texas

Before KING, Chief Judge, and REYNALDO G. GARZA and EMILIO M. GARZA, Circuit Judges.

KING, Chief Judge:

Petitioner Leslie Parnell Felder appeals from the district court's dismissal of his 28 U.S.C. 2254 petition, arguing that the court erred in concluding his petition was time-barred. He argues that his circumstances warrant equitable tolling. Those circumstances include (1) his incarceration before AEDPA's effective date; (2) his litigating pro se; (3) his claiming that he is innocent of the crime for which he was convicted; and (4) his alleged unawareness of AEDPA's requirements (as judicially interpreted) due to inadequacies of his prison's library, which he claims made the law's text inaccessible throughout his one-year grace period. Because we find these circumstances to be clearly insufficient to warrant equitable tolling, we affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Having been initially charged with capital murder, Leslie Parnell Felder ("Felder") was sentenced in December 1987 to life in prison after pleading guilty to aggravated robbery. Felder did not directly appeal his conviction and sentence. He subsequently filed applications for state habeas relief on January 11, 1993, January 13, 1995, and February 11, 1997. The first two applications were denied on the merits on March 31, 1993 and on April 10, 1996. The third was dismissed on April 30, 1997 for abuse of the writ.

Felder filed the instant 2254 petition on July 29, 1997. On October 27, Respondent filed a motion to dismiss the petition as time-barred under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). In his response, Felder claimed that he had not been aware of AEDPA's limitations period until after he received Respondent's motion to dismiss.¹

The district court granted Respondent's motion to dismiss the petition as time-barred under 2244(d). It correctly noted that the limitations period imposed by AEDPA became effective on April 24, 1996. See 28 U.S.C. 2244(d)(1) (1999) (providing one-year period after state court judgment becomes final to file federal habeas petition, subject to certain exceptions).² We have granted petitioners whose convictions became final before that effective date a one-year grace period, requiring them to file their 2254 applications by April 24, 1997. See Flanagan v. Johnson, 154 F.3d 196, 200 n.2 (5th Cir. 1998); United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998) (announcing one-year grace period in context of 2255 petitions). The district court noted that Felder's application was filed ninety-nine days after the end of his grace period. Felder's third state application, which was dismissed for abuse of the writ, was pending for seventy-eight days. Even if this petition was deemed "properly filed" under 2244(d)(2), and therefore tolled the statute of limitations during its pendency, Felder's 2254 petition was filed late.³

Felder filed a motion for reconsideration of the dismissal. In that motion, Felder restated his argument that AEDPA's limitations period was unconstitutional as applied, and also alleged that his case fell under 2244(d)(1)(B). Felder again referred to the Tarter and Meadows affidavits and claimed to have shown that AEDPA was not available to him until at least September 1997 - after the expiration of his limitations period.

On July 23, 1998, the district court "reluctantly" denied Felder's motion for reconsideration. It "interpret[ed] the applicable authorities" to allow only the one-year grace period, citing Flores.⁴ However, the district court concluded that "the application of the grace period under Flores, supra, is a matter debatable among jurists of reason." Construing the motion for reconsideration as a request for a Certificate of Appealability ("COA"), the district court granted a COA as to whether Felder's petition "may be deemed timely filed under AEDPA, under circumstances consisting of the following": Felder (1) was incarcerated before AEDPA's effective date; (2) is litigating pro se; (3) claims he is innocent of the crime for which he was convicted; (4) claims that he was unaware of AEDPA's requirements (as judicially interpreted), and (5) claims that he lacked access to the law's text during his one-year grace period.

II. DISCUSSION

In his appellate reply brief, Felder specifically contends that equitable tolling of AEDPA's statute of limitations is warranted under the circumstances discussed by the district court.⁵ None of the district court's orders in this case, nor any of Felder's prior filings, addressed equitable tolling. We note that the court did not have the benefit of our opinion in Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998), cert. denied, ___ U.S. ___, 119 S. Ct. 1474 (1999).⁶

In Davis, we held, as a matter of first impression, that the AEDPA one-year limitations period was a statute of limitations, not a bar to federal jurisdiction. See id. at 807. As a statute of limitations, it could be equitably tolled, albeit only in "rare and exceptional circumstances."⁷ Id. at 811; see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently 'rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). We have since provided additional insight into the types of circumstances that may be seen as rare and exceptional. In Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999), for example, we stated that "'[e]quitable 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.'" Id. at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). It is undisputed that, if equitable tolling for at least twenty-one days of Felder's one-year grace period is unwarranted, Felder's petition must be dismissed as untimely.

In light of Davis and our other jurisprudence, the circumstances enumerated by the district court in granting a COA are clearly insufficient to warrant equitable tolling. We have held that a petitioner's incarceration prior to AEDPA's passage does not present an extraordinary circumstance warranting equitable tolling. See Fisher, 174 F.3d at 714 (noting that AEDPA's one-year grace period affected hundreds of prisoners, none of whom learned of it on its effective date). Likewise, proceeding pro se is not a "rare and exceptional" circumstance because it is typical of those bringing a 2254 claim. Cf. United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993) (holding pro se status, illiteracy, deafness, and lack of legal training are not external factors excusing abuse of the writ); Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (holding equitable tolling of limitations within the Age Discrimination in Employment Act not warranted by plaintiff's unfamiliarity with legal process, his lack of representation, or his ignorance of his legal rights). Felder's actual innocence claim also does not constitute a "rare and exceptional" circumstance, given that many prisoners maintain they are innocent.⁸

Felder has linked the fourth and fifth circumstances, arguing that he did not have notice of AEDPA's requirements due to inadequacies of his prison's law library. He contends that without notice of AEDPA's requirements, he was denied the opportunity to timely file his petition. Because Felder clearly filed his petition before becoming aware of AEDPA's requirements, his unawareness of the law arguably has not "prevented in some extraordinary way [his] asserting his rights." Coleman, 184 F.3d at 402.⁹

In Fisher, we rejected a petitioner's claim that he was entitled to equitable tolling for the forty-three day period between AEDPA's effective date and the date on which he received actual notice of AEDPA. See 174 F.3d at 714. We gave a number of reasons for our decision, including the fact that "ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing." Id. To support this reasoning, we cited prior decisions of this court holding that mere ignorance of the law or lack of knowledge of filing deadlines does not justify equitable tolling or other exceptions to a law's requirements. See id. at 714 n.13 (citing 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 a claim in a prior petition), and Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (holding that "lack of knowledge of the filing deadlines" does not justify equitable tolling)). We could have just as easily cited to other cases for the same "ignorance of the law is no excuse" proposition. See, e.g., Quina v. Owens-Corning Fiberglas Corp., 575 F.2d 1115, 1118 (5th Cir. 1978); Howard v. Sun Oil Co., 404 F.2d 596, 601 (5th Cir. 1968).

Other language in Fisher would appear to lend support to Felder's argument that his circumstances warrant equitable tolling. See Fisher, 174 F.3d at 715 ("In the right circumstances, a delay in receiving information might call for equitable tolling - such as if the prison did not obtain copies of AEDPA for months and months . . . ."). This language is dicta, however, and we need not follow it. Moreover, in addition to our long line of cases holding that mere ignorance of the law or of statutes of limitations is insufficient to warrant tolling,¹⁰ we have ...