Fisher v. Johnson

• Decision Date: 24 May 1999
• Docket Number: No. 98-50566,98-50566
• Parties: Thomas James FISHER, 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 710

174 F.3d 710

Thomas James FISHER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 98-50566.

United States Court of Appeals Fifth Circuit.

May 24, 1999.

Thomas James Fisher, Rosharon, TX, pro se.

Michelle Dulany Roche, Austin, TX, for Respondent-Appellee.

Appeals from the United States District Court for the Western District of Texas.

Before SMITH, DeMOSS and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Thomas James Fisher appeals the dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred, contending that the district court abused its discretion by refusing equitably to toll the limitation period. Finding no error, we affirm.

I.

Fisher was convicted of murder and sentenced to serve thirty years in prison. His conviction was affirmed by the Texas Court of Appeals and, on petition for discretionary review, by the Texas Court of Criminal Appeals. He filed a state habeas application, and the trial court recommended denial without a hearing. The Texas Court of Criminal Appeals denied the application without written order.

Fisher mailed a pro se habeas petition to the federal district court in which he alleged various constitutional errors. The state moved to dismiss, averring that the filing was time-barred under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). ¹ Fisher objected to the state's calculations of time and argued that the limitation period should be tolled for various reasons. The court granted the motion to dismiss, agreeing that AEDPA's statute of limitations had run.

Fisher appeals. The district court granted his application to proceed in forma pauperis and granted his application for a certificate of appealability ("COA") on whether the court should have equitably tolled the limitation period until he had actual notice of AEDPA and during his psychiatric confinement.

II.

Fisher filed his § 2254 petition in 1997, after AEDPA's April 24, 1996, effective date, and hence his claim is governed by its provisions. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA establishes, for the first time, an explicit limitation period for state prisoners filing federal habeas petitions. See Lonchar v. Thomas, 517 U.S. 314, 327, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996). Congress allows "a person in custody pursuant to the judgment of a state court" one year to file a § 2254 petition. See 28 U.S.C. § 2244(d)(1). ² The statute of limitations begins to run from the latest of several possible events; the date Fisher's state judgment became final is the only relevant event here. See id. § 2244(d)(1)(A).

Fisher's judgment became final in 1993, prior to AEDPA's effective date. Retroactively applying AEDPA would time-bar his petition as of AEDPA's 1996 effective date. In accord with AEDPA's language, and to prevent the apparent inequity of such a technical result, we have allowed a prisoner whose conviction became final before AEDPA's effective date a reasonable length of time--a grace period--during which to file his petition. ³ Drawing on § 2244(d)(1), we have decided that one year presumptively constitutes a reasonable time. See Flanagan, 154 F.3d at 200; Flores, 135 F.3d at 1006. This would make Fisher's petition timely if filed on or before April 24, 1997. ⁴

As the district court recognized, however, limitations should be tolled pursuant to § 2244(d)(2) during the time that properly filed state post-conviction or other collateral review proceedings are pending. ⁵ The time from when Fisher properly filed his state habeas application until when it was denied does not count against the limitation period. See § 2244(d)(2). ⁶

Fisher filed his state habeas application on April 22, 1997, two days before the initial one-year statute of limitations was to expire. The state courts denied relief, thus terminating the pending application, on August 27, 1997. ⁷ Adding to that date the two days within the limitation period remaining before the state application was filed, Fisher needed to file his federal petition by August 29, 1997, but he did so on September 15, 1997. ⁸

III.

Fisher argues that the district court should have equitably tolled the limitation period. In Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), we held that AEDPA's filing provision is not jurisdictional but, instead, is a statute of limitations that, like all limitation statutes, could be equitably tolled. Id.; see also Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 847, 142 L.Ed.2d 701 (1999).

The district court declined to invoke equitable tolling. Such a decision is left to the district court's discretion; we review, therefore, only for abuse of discretion. See Barrs v. Sullivan, 906 F.2d 120, 122 (5th Cir.1990). ⁹

A.

As a discretionary doctrine that turns on the facts and circumstances of a particular case, equitable tolling does not lend itself to bright-line rules, but we draw on general principles to guide when equitable tolling is appropriate. We must be cautious not to apply the statute of limitations too harshly. "Dismissal of a first habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Lonchar, 517 U.S. at 324, 116 S.Ct. 1293.

At the same time, the Supreme Court has expressed deference to the rules that Congress fashioned concerning habeas. See id. at 321-23, 116 S.Ct. 1293. 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 purpose manifests itself in the one-year statute of limitations, which will speed up the habeas process considerably. ¹⁰

The court's judicious discretion equitably to toll helps safeguard habeas while still fulfilling Congress's express desire to accelerate the process. A court can allow an untimely petition to proceed under the doctrine of equitable tolling "in extraordinary circumstances." Davis, 158 F.3d at 810. We and the district courts, guided by precedent, must examine each case on its facts to determine whether it presents sufficiently "rare and exceptional circumstances" to justify equitable tolling. Id. at 811. ¹¹

For example, in Cantu-Tzin, the only case in which we have applied equitable tolling to AEDPA, ¹² we addressed whether the state's failure to appoint competent habeas counsel, forcing the petitioner to represent himself, justified equitably tolling the limitation period to allow an untimely petition. We held that, with facts "wholly unfavorable to the petitioner," "the fully-developed record demonstrates the unavailability of equitable tolling of the AEDPA limitations period." Cantu-Tzin, 162 F.3d at 299-300. Cantu-Tzin dismissed one attorney and sought to represent himself and failed diligently to pursue his § 2254 petition despite awareness of the limitation period. See id. This "disdain for and lack of cooperation with state access-to-counsel procedures and the AEDPA deadline" meant equity did not favor tolling. Id. at 297.

B.

Fisher points to two circumstances. First, he did not receive notice of AEDPA's statute of limitations until June 9, 1996, forty-three days after AEDPA's effective date, because a copy of AEDPA did not arrive in the prison library until that day. Second, he claims the statute should be tolled for the seventeen days he spent confined in a special unit for psychiatric evaluation, without his glasses and without access to legal materials. Because Fisher filed only seventeen days late, equitably tolling for either reason would render his petition timely.

1.

Fisher requests that the statute of limitations be equitably tolled for forty-three days, the time between AEDPA's effective date, when the statute began to run for him, and the day on which he received actual notice of AEDPA. We disagree; this does not present a rare and exceptional circumstance that justifies equitable tolling.

First, ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing. ¹³ We recognize that Fisher's incarceration prevented him from knowing sooner of AEDPA's limitation period; even due inquiry could not have yielded the necessary knowledge. Nonetheless, we are wary of finding it sufficient to toll the limitation period.

Second, petitioner's circumstance is not rare. Our one-year grace period for those incarcerated as of AEDPA's effective date affects hundreds of prisoners. Most likely, not a single one of them learned of AEDPA on its effective date--its enactment date. When we formulated the rule, however, we found one year from the effective date a reasonable period of time, regardless of this obvious delay in notice to prisoners.

Furthermore, Congress knew AEDPA would affect incarcerated individuals with limited access to outside information, yet it failed to provide any tolling based on possible delays in notice. In the face of Congressional silence, we are reticent to create this type of tolling judicially. Although we would apply it here under the rubric of equitable tolling, the same concept would apply equally to many other prisoners and in different variations of delayed information, becoming a judicial tolling rule. Such broad decisions are for Congress, not equity.

Finally, equity simply does not call for tolling on these facts. Even after learning of AEDPA's limitation period, Fisher had 322 days to complete his § 2254 petition. That is more than enough time. See Covey, 865 F.2d at 662 ("[E]quity is not intended for those who sleep on their rights."). ¹⁴

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, or if an essential piece...