               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 00-20930


RICHARD KENT MILLER,
                                           Petitioner-Appellant,

                              versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
                                       Respondent-Appellee.



          Appeal from the United States District Court
               For the Southern District of Texas
                         (H-97-CV-3391)

                           July 11, 2002



Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Prisoner Richard Kent Miller appeals the district court’s

dismissal of his 28 U.S.C. § 2254 petition as time-barred under the

one-year limitations period of 28 U.S.C. § 2244(d). Miller was

convicted of aggravated sexual assault and sentenced to life

imprisonment in 1992. On March 3, 1994, his conviction was affirmed

by an intermediate state appellate court. The Texas Court of


     *
        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this opinion should not be published and is not precedent except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.

                                 1
Criminal Appeals refused a petition for discretionary review on

June 29, 1994.

     Because Miller’s conviction became final prior to the AEDPA’s

effective date of April 24, 1996, his petition was timely if it was

filed before the one-year grace period expired on April 24, 1997.1

Six days before this deadline, on April 18, 1997, Miller delivered

a state habeas application to prison officials for mailing.                 The

application was postmarked on April 19, was received by the clerk’s

office on April 22, and was filed in the Harris County District

Court on May 5. Thus Miller filed his state petition eleven days

after the expiration of the one-year grace period.

     The Texas Court of Criminal Appeals denied Miller’s state

petition on September 22, 1997, but Miller did not receive the

court’s notice until October 2. He filed his § 2254 petition on

October 2, the same day that he received notice that his state

habeas application had been denied but ten days after the denial of

his state petition. The Director moved to dismiss Miller’s petition

as time-barred, and the district court initially denied the motion

even though Miller’s state petition was untimely filed. Later the

district    court   granted   the   motion     in   light   of   this    court’s

intervening decision in Coleman v. Johnson,2 in which we refused to

extend     the   “mailbox   rule”   to   the    filing      of   state   habeas

     1
         Flanagan v. Johnson, 154 F.3d 196, 199-200, 202 (5th Cir.
1998).
     2
         184 F.3d 398 (5th Cir. 1999).

                                     2
applications. Miller appealed, and we granted Miller a Certificate

of Appealability to determine whether equitable tolling should

apply to preserve his claims.

      Despite the fact that Miller’s state petition was filed eleven

days after the expiration of the grace period on April 24, 1997, he

asks us to apply equitable tolling because he exercised diligence

in   seeking    §   2254   relief    once    state   habeas    relief   proved

unsuccessful and because the state clerk did not file-stamp his

state habeas application until thirteen days after it was received.

      The limitations period of § 2244(d), including the one-year

grace     period,   is   subject    to   equitable   tolling   “in   rare   and

exceptional circumstances.”3 The doctrine of equitable tolling

preserves a petitioner’s claims “when strict application of the

statute of limitations would be inequitable.”4 A district court’s

refusal to invoke the doctrine of equitable tolling is reviewed

only for abuse of discretion.5

      The district court relied upon our decision in Coleman to

dismiss Miller’s petition, and our holding in Coleman governs the

result here. Miller’s state petition was filed eleven days after

the end of the grace period, and is thus untimely even though he


      3
       Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998);
Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998).
      4
       Davis, 158 F.3d at 810 (internal quotations and citations
omitted).
      5
          Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999).

                                         3
delivered the petition to prison officials for mailing six days

before the deadline.    Miller correctly points out that although we

declined to extend the mailbox rule to the determination of filing

dates for state habeas applications—partly because doing so would

require us to interpret state rules of filing and to address the

filing systems of state courts6—we explicitly stated that when a

prisoner’s ability to file a federal habeas petition has been

affected by a state proceeding, we would examine the facts and

determine whether the prisoner was entitled to equitable tolling.7

     Nonetheless, we do not that find that the district court

abused its discretion in refusing to apply equitable tolling in

this case. The application of our rule in Coleman is not itself a

“rare and exceptional circumstance[]”8 sufficient to justify the

application    of   equitable   tolling.   Equitable   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.”9

     We recognize that the state’s decision to notify Miller of the

denial of his state petition via the mail may have precluded him



     6
         Coleman, 184 F.3d at 402.
     7
         Id.
     8
         Davis, 158 F.3d at 811.
     9
       Ott, 192 F.3d at 512 (quoting Coleman v. Johnson, 184 F.3d
398, 402 (5th Cir. 1999)).

                                     4
from filing the instant petition until eleven days after the state

petition was denied, but his state petition was itself filed eleven

days after the April 24, 1997 deadline. While we recognize that the

April 24 deadline was judicially crafted, Miller nonetheless waited

almost three years after his conviction became final to file his

state petition. As this court has noted, “equity is not intended

for those who sleep on their rights.”10

     We cannot apply equitable tolling in every circumstance where

the application of Coleman renders a state petition untimely. The

application of a rule is not a rare or exceptional circumstance

justifying equitable tolling, and thus we find no error in the

district court’s decision not to apply the doctrine of equitable

tolling in this case. Because equitable tolling does not apply, the

judgment appealed is AFFIRMED.




     10
       Coleman, 184 F.3d at 403 (quoting Fisher v. Johnson, 174
F.3d 710 (5th Cir. 1999)).

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