Ott v. Johnson, No. 98-41211

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore POLITZ, DAVIS, and STEWART; POLITZ
Citation192 F.3d 510
Parties(5th Cir. 1999) GREGORY ARTHUR OTT, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee
Docket NumberNo. 98-41211
Decision Date21 October 1999

Page 510

192 F.3d 510 (5th Cir. 1999)
GREGORY ARTHUR OTT, Petitioner-Appellant,
v.
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.
No. 98-41211
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
October 21, 1999

Page 511

Appeal from the United States District Court For the Eastern District of Texas

Before POLITZ, DAVIS, and STEWART, Circuit Judges.

POLITZ, Circuit Judge:

Texas inmate Gregory Arthur Ott appeals the district court's denial of his habeas corpus petition under 28 U.S.C. 2254. For the reasons assigned, we affirm.

BACKGROUND

In 1978, Ott was convicted of murdering a Texas Ranger and was sentenced to life imprisonment. This conviction was affirmed on direct appeal and became final in July 1982. 1 On April 23, 1997, Ott, represented by counsel, filed a state habeas corpus application, challenging issues relating to the rescission of his parole certificate and the validity of his conviction. 2 On September 17, 1997, the Texas Court of Criminal Appeals denied the application without written order.

On Tuesday, September 23, 1997, Ott, represented by counsel, filed a 2254 petition raising the same issues as in the state habeas application. Counsel stated that on the prior Saturday, September 20, 1997, he received a "white card" from the Texas Court of Criminal Appeals postmarked September 18, 1997, noting that Ott's habeas application had been denied. Counsel stated that he mailed the 2254 application for filing on Monday, September 22, 1997, the next business day after receiving notification.

Adopting a report and recommendation by the magistrate judge, the district court found that Ott had until April 24, 1997 to timely file a 2254 application and that the filing of the state court action on April 23, 1997 tolled the period for one day. The court determined that the filing on September 23, 1997, after the denial of the

Page 512

state application on September 17, 1997, was untimely. It also rejected Ott's argument that the limitations period should be tolled during the time allotted to seek a petition for certiorari from the denial of his state habeas application. Finally, the district court determined that equitable tolling should not apply in this case as Ott had waited nineteen years before bringing his claims.

After dismissing his petition as time-barred, the district court granted a certificate of appealability ("COA") limited to the issues regarding the limitations period and equitable tolling.

ANALYSIS

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), there is a one-year limitations period for filing a writ of habeas corpus by a person in state custody. Under 28 U.S.C. 2244(d)(1)(A), the limitations period commences from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 3 Moreover, "[t]he 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." 28 U.S.C. 2244(d)(2).

For convictions final before the effective date of the AEDPA, we have applied a one-year grace period allowing habeas petitioners until April 24, 1997 to file their claims. 4 As noted, however, under 2244(d)(2) the time between Ott's filing of his state habeas application and its denial does not count against the one-year limitations period.

Ott filed his state habeas application on April 23, 1997, one day before the expiration of the grace period. The limitations period expired on Friday, September 19, 1997, one day after the Texas Court of Criminal Appeals denied the habeas application on September 18, 1997. 5 Ott asserts two bases that would prevent his September 23, 1997 application from being deemed untimely filed. First, he contends that the ninety days in which a state habeas petitioner may petition the United States Supreme Court for a writ of certiorari, even if no petition for certiorari is filed, should toll the limitations period. Second, he asserts that the limitations period in this case should be extended by the doctrine of equitable tolling. 6

I

Ott first contends that 2244(d)(2), which tolls the limitations period while a "properly filed application for State post-conviction or other collateral review" is pending, includes the ninety days in which a state habeas petitioner may file a petition for writ of certiorari with the United States Supreme Court. He maintains that expiration of the limitations period prior to the time in which he could seek Supreme Court review would unfairly penalize those who desire to petition for certiorari.

Page 513

We review this question of statutory construction de novo.7

We have not previously had an opportunity to consider this issue. We now reject same. We agree with our colleagues in the Tenth Circuit that 2244(d)(2) does not toll the limitations period from...

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480 practice notes
  • Moore v. Quarterman, Civil No. SA-03-CA-405-RF.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 20 Diciembre 2007
    ...with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation...." Ott v. Johnson, 192 F.3d 510, 512 (5th Cir.1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1834, 146 L.Ed.2d 777 (2000). Thus, the AEDPA's one-year statute of limitations on pe......
  • Thibodeaux v. Vannoy, DOCKET NO. 2:18-cv-1599 SECTION P
    • United States
    • U.S. District Court — Western District of Louisiana
    • 11 Diciembre 2019
    ...for post-conviction relief is pending in state court is not counted toward the one-year limit. Id. at § 2244(d)(2); Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999). However, any lapse of time before proper filing in state court is counted. Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th ......
  • Arita v. Cain, CIVIL ACTION NO. 11-636
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 20 Agosto 2011
    ...a writ of certiorari from the United States Supreme Court. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999); Chester v. Cain, Civ. Action No. 01-1958, 2001 WLPage 51231660, at *3-4 (E.D. La. Oct. 15, 2001); see also U.S. Sup. Ct. ......
  • S.D. ex rel. Dickson v. Hood, No. 03-30007.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Noviembre 2004
    ...answer issues of statutory interpretation. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir.1995) (en banc); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999). Summary judgment is appropriate only when the record indicates "no genuine issue as to any material fact and that the m......
  • Request a trial to view additional results
476 cases
  • Moore v. Quarterman, Civil No. SA-03-CA-405-RF.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 20 Diciembre 2007
    ...with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation...." Ott v. Johnson, 192 F.3d 510, 512 (5th Cir.1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1834, 146 L.Ed.2d 777 (2000). Thus, the AEDPA's one-year statute of limitations on pe......
  • Thibodeaux v. Vannoy, DOCKET NO. 2:18-cv-1599 SECTION P
    • United States
    • U.S. District Court — Western District of Louisiana
    • 11 Diciembre 2019
    ...for post-conviction relief is pending in state court is not counted toward the one-year limit. Id. at § 2244(d)(2); Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999). However, any lapse of time before proper filing in state court is counted. Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th ......
  • Arita v. Cain, CIVIL ACTION NO. 11-636
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 20 Agosto 2011
    ...a writ of certiorari from the United States Supreme Court. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999); Chester v. Cain, Civ. Action No. 01-1958, 2001 WLPage 51231660, at *3-4 (E.D. La. Oct. 15, 2001); see also U.S. Sup. Ct. ......
  • S.D. ex rel. Dickson v. Hood, No. 03-30007.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Noviembre 2004
    ...answer issues of statutory interpretation. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir.1995) (en banc); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999). Summary judgment is appropriate only when the record indicates "no genuine issue as to any material fact and that the m......
  • Request a trial to view additional results

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