           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 8, 2009

                                       No. 06-41638                    Charles R. Fulbruge III
                                                                               Clerk

ROBERT JOSEPH SCHMITT

                                                   Petitioner - Appellant
v.

B. ZELLER, Warden

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:06-CV-168


Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Robert Joseph Schmitt appeals the dismissal of his
application for federal habeas relief. We AFFIRM.
       On August 9, 2001, a jury convicted Schmitt of two counts of sexual
assault of a child.       The Twelfth Court of Appeals in Texas affirmed the
convictions on October 22, 2003. Schmitt did not file for discretionary review.
Schmitt filed a state habeas application on August 16, 2004. The Texas Court
of Criminal Appeals denied the application on February 16, 2005, but Schmitt

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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did not learn of the denial until February 23, 2006, after he inquired about the
application’s status. On March 5, 2006, Schmitt wrote a letter to the Texas
Attorney General explaining his situation.        The Attorney General’s Office
responded by letter dated March 27, 2006, informing Schmitt that it represented
the State and could not provide him with legal advice. Schmitt says he received
the letter March 30, 2006.
        Schmitt filed a federal application for a writ of habeas corpus on April 14,
2006. See 28 U.S.C. § 2254. The application alleged ineffective assistance of
counsel and multiple errors by the trial court.       The Government moved to
dismiss the petition as time-barred. The magistrate judge recommended the
petition be dismissed as time-barred. Schmitt filed no objections. The district
court adopted the magistrate judge’s Report and Recommendation. On appeal,
Schmitt argues that the district court erred in denying him equitable tolling.
        The Antiterrorism and Effective Death Penalty Act of 1996 provides that
any federal challenge to a state conviction must be brought within one year after
direct review of the judgment becomes final. 28 U.S.C. § 2244(d)(1). The period
is tolled once an inmate files for post-conviction review in state court, then
recommences when a final denial of relief by the state occurs. Id. at § 2244(d)(2).
        Besides the statutory tolling, an inmate may qualify for equitable tolling
if the failure to file timely is caused by “external factors beyond his control;
delays of the petitioner’s own making do not qualify.” In re Wilson, 442 F.3d 872,
875 (5th Cir. 2006). The petitioner must show: “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his
way.”     Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)).         The magistrate judge found that
Schmitt was not entitled to equitable tolling.
        Because Schmitt did not object to the report of the magistrate, we review
only for plain error. Douglas v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29

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(5th Cir. 1996) (en banc). For there to be plain error, the district court must err,
the error must be plain, and the error must affect the inmate’s “substantial
rights.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). The court has
discretion to remedy the error but should exercise the discretion only if the error
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
      Schmitt delayed approximately ten months after his conviction was final
before applying for state habeas relief. We have recognized that a component of
the obligation to pursue rights diligently is not to wait until near a deadline to
make a filing, then seek equitable tolling when something goes awry. See
Johnson v. Quarterman, 483 F.3d 278, 287-88 (5th Cir. 2007) (filing on the last
day and encountering a court computer problem that prevented filing showed a
lack of diligence). Similarly, Schmitt’s filing the state petition after squandering
most of the year available under Section 2244 is a factor in deciding whether
equitable tolling should be allowed for problems that arise in later filing the
federal petition. Leaving little margin for error is incautious and not diligent.
      Having only two months to act once the state habeas proceedings
concluded, Schmitt did not inquire into his application’s status for eighteen
months, which was a year after the denial of relief had actually been entered.
He then delayed another fifty days between learning of the denial of the state
application and filing his Section 2254 application.
      In evaluating diligence, our precedents have examined both the delay
between filing for relief in state court and later inquiring about its status, and
the delay between learning of the state court’s ruling and the filing of an
application under Section 2254 in federal court. We have found diligence when
a petitioner waited eleven months before inquiring into the status of his state
habeas petition and then filed his federal application only one week later. Hardy
v. Quarterman, 577 F.3d 596, 599 (5th Cir. 2009). We have also found diligent

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pursuit of relief when seven months after filing his state petition, the inmate
learned of its denial, filed for an out-of-time appeal three days later, then filed
for federal habeas within a month of the denial of the out-of-time appeal.
Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).
      Conversely, we found lack of diligence where the petitioner alleged that he
filed a state petition but learned approximately ten months later – which was
eight months after the time to file had expired – that there was no record of it.
Howland v. Quarterman, 507 F.3d 840, 846 (5th Cir. 2007). Among the indicia
of a lack of diligence was that the inmate had waited ten months after his
conviction before attempting to file his state habeas application. Id.
      In addition, we found a lack of diligence when an inmate waited thirty
months before inquiring into the status of his state petition. Lewis v. Cockrell,
275 F.3d 46, 2001 WL 1267701 (5th Cir. Oct. 15, 2001) (unpublished). Lewis
filed his Section 2254 application within two weeks of learning that the state
court denied relief, but it was the thirty-month delay that we found to disqualify
him from equitable relief.     Id. at *3.   Though the Lewis decision is not
precedential, it was some guidance for Schmitt as he was determining what he
had to do.
      This caselaw reveals that there is no mathematical formula by which to
calculate diligence by an inmate in learning either of the denial of his state
habeas relief or in thereafter filing his Section 2254 application. “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.”      Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Schmitt’s initial delay of eighteen
months is shorter than the periods we have found not to reflect diligence, and
longer than any in which we have found diligence. The wait of fifty days after
learning of the denial of relief in state court before filing the section 2254



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application, a wait which included contact with and a response from the Texas
Attorney General’s Office, has no clear analogy in the precedents.
      Because there is no mathematical formula to apply, and the district court
was presented with delays somewhere between those that have been found to
reflect diligence and others that do not, we conclude that any error in refusing
to apply equitable tolling would not be obvious under current law. United States
v. Valles, 484 F.3d 745, 759 (5th Cir. 2007).
      Because there was no plain error, we AFFIRM.




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