     Case: 09-10991 Document: 00511437125 Page: 1 Date Filed: 04/06/2011




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

                                                 FILED
                                                                             April 6, 2011

                                     No. 09-10991                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JAMES HULSEY,

                                                   Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:09-CV-207


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       James Hulsey, Texas prisoner number 1118103, appeals from the district
court’s dismissal of his petition for habeas corpus relief as time-barred. Hulsey
acknowledges that his first federal petition comes years after his state conviction
became final but contends that the district court erred in failing to equitably toll
the running of the Antiterrorism and Effective Death Penalty Act of 1996



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                           No. 09-10991

(“AEDPA”) time bar because of his severe mental illness. He further asserts that
the district court abused its discretion in failing to appoint a mental health
expert to assist Hulsey in presenting or the court in reviewing the relevant
medical records. After careful review of Hulsey’s medical records that were
presented to the district court, we conclude that Hulsey has not established that
the district court abused its discretion.
         We AFFIRM.
                                 I. Facts & Procedural History
         James Hulsey was charged in Texas state court with multiple counts of
aggravated assault with a deadly weapon.                   A jury convicted Hulsey of the
charges on July 31, 2002, and the state trial court imposed a sentence of thirty
years imprisonment. The Second District Court of Appeals affirmed on October
30, 2003, Hulsey v. State, Nos. 2-02-310-CR & 2-02-311-CR, 2003 Tex. App.
LEXIS 9253, at *5 (Tex. App.—Fort Worth Oct. 30, 2003, no pet.) (unpublished
mem.); Hulsey did not file a petition for discretionary review with the Texas
Court of Criminal Appeals, and his conviction became final for AEDPA purposes
on December 1, 2003.1
         Between 2002 and at least the time of the filing of this appeal, Hulsey has
been incarcerated in Texas state and local facilities. While incarcerated, Hulsey
received extensive inpatient psychiatric care for a serious condition with
psychotic symptoms.2 His principal complaints throughout the years covered by


         1
         Under AEDPA, a conviction becomes final “by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). When, as here, the
defendant ceases the appeals process before reaching the state court of last resort, “the
conviction becomes final when the time for seeking further direct review in the state court
expires.” Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). Hulsey had thirty days,
ending on December 1, 2003, to file his appeal with the Texas Court of Criminal Appeals. See
TEX . R. APP . P. 68.2(a).
         2
             Hulsey has been most consistently diagnosed with schizoaffective disorder, depressive
type.

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the record have been auditory hallucinations and severe depression. Although
Hulsey describes some of his mental health symptoms, he never articulates a
reason why he was able to file the pleadings he has filed at the time he did but
was unable to do so before. In other words, he has not articulated some changed
circumstance in his mental condition between earlier periods and the periods
described below where he made habeas filings.
        On October 18, 2007, Hulsey filed two state petitions for habeas corpus;
relying on the trial court’s findings of fact, the Texas Court of Criminal Appeals
rejected both without written order on February 20, 2008.
        On March 31, 2009, Hulsey filed this petition for habeas corpus in the
United States District Court for the Northern District of Texas. The matter was
initially referred to a magistrate judge, who recommended dismissal of the
petition as time-barred. Hulsey timely filed objections. Before accepting the
magistrate judge’s recommendation, the district judge ordered the State to file
all of Hulsey’s medical records with the court to assist in the evaluation of
Hulsey’s argument for equitable tolling. The State submitted 1,106 pages of
Hulsey’s medical records covering approximately late 2001 through early 2009,
albeit with significant gaps. Most importantly, the record contains virtually no
information concerning Hulsey’s treatment and condition in 2003 and 2004.3
        The district court reviewed the medical records and entered a final
judgment rejecting Hulsey’s claim of equitable tolling and dismissing the
petition as time-barred. Hulsey filed a notice of appeal, which the district court
construed as a motion for a certificate of appealability (“COA”) and denied.
Hulsey moved for reconsideration, and the district court denied that motion as
well.




        3
            The State has never offered an explanation for these gaps.

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       We granted a COA as follows: “(1) whether the district court’s review of
[Hulsey’s] medical records, without expert opinion or other guidance, was
sufficient to properly evaluate Hulsey’s claim that he is entitled to equitable
tolling because his mental condition rendered him unable to pursue his legal
rights during the years 2005 through 2008; and (2) if the district court erred in
its evaluation of Hulsey’s medical records for 2005 through 2008, whether the
district court’s decision, based on incomplete records, not to consider whether
Hulsey’s medical records established that he was unable to file for federal
habeas relief in 2003 and 2004 was correct.”4 Hulsey v. Thaler, No. 09-10991
(5th Cir. May 21, 2010) (order granting COA in part and denying COA in part).
We denied all other asserted grounds for a COA. Id. Our jurisdiction on appeal
is limited to the two issues covered by the COA. Larry v. Dretke, 361 F.3d 890,
896 (5th Cir. 2004).
                                 II. Standard of Review
       Because the decision to invoke equitable tolling is discretionary, we review
the district court’s grant or denial of equitable tolling only for an abuse of that
discretion. Cousin v. Lensing, 310 F.3d 843, 847–48 (5th Cir. 2002). The district
court is similarly vested with the discretion to appoint or decline to appoint an
expert mental health professional to assist a party under 18 U.S.C. § 3006A, see
United States v. Hardin, 437 F.3d 463, 468 (5th Cir. 2006), or the court under
Federal Rule of Evidence 706, see Hannah v. United States, 523 F.3d 597, 600
(5th Cir. 2008) (citing Fugitt v. Jones, 549 F.2d 1001, 1006 (5th Cir. 1977)).
       We thus review both of the issues appealed for abuse of discretion. “A
district court abuses its discretion if it: (1) relies on clearly erroneous factual
findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to



       4
         Our disposition of this appeal makes it unnecessary to consider the State’s contention
that the COA regarding the 2003 and 2004 years was improperly granted.

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the facts.” In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en
banc).
                                      III. Discussion
A.       Expert Assistance
         Hulsey’s first claim is that the district court abused its discretion in
refusing to appoint a mental health professional, either under 18 U.S.C.
§ 3006A(e) to assist Hulsey or under Federal Rule of Evidence 706 to assist the
court, to review Hulsey’s medical records. He points, however, to no authority
that meaningfully supports his position. In cases where it applies,5 § 3006A(e)(1)
requires appointment of an expert witness to assist an indigent party where the
expert’s “services are necessary.” § 3006A(e)(1); see also United States v.
Williams, 998 F.2d 258, 263–64 (5th Cir. 1993) (holding that the movant must
show that the appointment of an expert is “necessary for adequate
representation”). In prior decisions, we have suggested that a district court does
not abuse its discretion in refusing to appoint an expert where the expert would
add no additional information beyond that already in the record, see United
States v. Collins, 205 F. App’x 196, 199 (5th Cir. 2006) (unpublished);6 and where
the movant has not demonstrated any prejudice from the denial of appointment,
see United States v. Walborn, 730 F.2d 192, 194 (5th Cir. 1984); see also Collins,
205 F. App’x at 199. A similar standard applies to the appointment of an expert
under Federal Rule of Evidence 706. The purpose of Rule 706 is to allow “the
appointment of an expert to aid the court,” as distinct from an expert appointed
for the benefit of a party. See Hannah v. United States, 523 F.3d 597, 600 (5th



         5
       Because we find no error in the district court’s refusal to appoint counsel under the
standard of § 3006A(e)(1), we will assume without deciding that that subsection in fact applies
wholesale to non-capital habeas cases such as this.
         6
        While unpublished, Collins holds persuasive value, particularly in light of the limited
recent case law in this circuit applying § 3006A(e)(1) outside of the insanity defense context.

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Cir. 2008). In an unpublished decision, we have emphasized that a district court
therefore cannot abuse its discretion under Hannah if the movant does not
“show[] that [the expert] testimony would have aided the court.” See McGiffin
v. Curry, No. 09-20800, 2010 U.S. App. LEXIS 23653, at *2–3 (5th Cir. Nov. 17,
2010) (unpublished).
      Hulsey does not claim that a mental health professional would have been
of assistance for the purpose of evaluating Hulsey now; rather, the putative
appointed expert would only have reviewed Hulsey’s records. The records at
issue are the observations, written in plain English, of the various mental health
providers who treated and worked with Hulsey while he has been in the State’s
custody.    In that respect, they already represent the firsthand, trained
observations of experts; Hulsey has not explained what more an appointed
expert would have added. To the extent that Hulsey argues that an expert
would be able to testify to the possible side effects of the medication that Hulsey
was prescribed, that testimony would be of little use to the court in the face of
the regular observations of the prescribing medical professionals as to the side
effects that Hulsey actually experienced.
      In short, the evidence already in the record is precisely the kind of
evidence that an expert witness retained under § 3006A(e) or Rule 706 would be
expected to give.    The district court is competent to evaluate such expert
material.    Hulsey does not challenge the medical records’ accuracy or
admissibility; he merely contends that the district court was not competent to
evaluate their import on its own. While there may be circumstances where that
is true, under the facts of this case and the records presented here, we reject that
contention and find no abuse of discretion in the district court’s refusal to
appoint an expert mental health professional. We find no error with respect to
the first issue on which the COA was granted.



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                                  No. 09-10991

B.    Equitable Tolling
      The second issue requires us to assess whether the district court’s rejection
of the equitable tolling argument for the years 2005 through 2008 is correct and,
if it is not, to look at years 2003 and 2004. Thus, we first address the equitable
tolling issue as to 2005 through 2008. Under AEDPA, a state habeas petitioner
generally has one year following the finality of the underlying judgment to file
a federal petition for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1)(A). A
number of exceptions apply, two of which are relevant here. First, “[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 [is]
not . . . counted toward” the one-year time bar on federal review.             Id.
§ 2244(d)(2). A state petition filed after the AEDPA time limit has already run,
however, has no effect on the time bar. Scott v. Johnson, 227 F.3d 260, 263 (5th
Cir. 2000) (“[Petitioner]’s state habeas application did not toll the limitation
period under § 2244(d)(2) because it was not filed until after the period of
limitation had expired.”). Second, the Supreme Court recently confirmed the
practice of this and other circuits in “hold[ing] that § 2244(d) is subject to
equitable tolling in appropriate cases.” Holland v. Florida, 130 S. Ct. 2549, 2560
(2010). Under Holland, “a habeas petitioner is entitled to equitable tolling only
if he shows ‘(1) that he ha[d] been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.’”
Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010) (quoting Holland, 130 S. Ct.
at 2562) (alteration in original) (internal quotation marks omitted), cert. denied,
79 U.S.L.W. 3492 (2011). Holland defines “diligence” for these purposes as
“reasonable diligence, not maximum feasible diligence,” 130 S. Ct. at 2565
(internal citations and quotation marks omitted), and we have similarly stated




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that equitable tolling is unavailable to “those who sleep on their rights,” see, e.g.,
Covey v. Ark. River Co., 865 F.2d 660, 662 (5th Cir. 1989).7
       A review of Hulsey’s medical records shows that the district court did not
err in its assessment of the facts underlying the equitable tolling claim. For the
period from between approximately September 2005 through at least early
August 2007, Hulsey’s condition was stable. During that time, while Hulsey was
housed at the Skyview facility—an inpatient psychiatric care facility within the
Texas Department of Criminal Justice—Hulsey was under the near-constant
supervision of mental health professionals. According to their records, Hulsey
was regularly receiving prescribed doses of psychotropic medications, reported
his symptoms as under control, participated in weekly group therapy and
intermittent activities, and consistently denied any disabling side effects of any
of the medications.
       Hulsey is correct that the records suggest that he was not doing well in
2002, are silent as to 2003 and 2004, and show that his condition worsened
significantly during and subsequent to his transfer in early 2008 to an Ector
County, Texas facility on a bench warrant. But the absence of records for 2003
and 2004 and the fact that there are periods of time in early 2005, 2007, and
2008 during which Hulsey was clearly unwell are irrelevant. For the entire
calendar year of 2006—and, indeed, for some months in late 2005 and early
2007—the medical records clearly support the district court’s finding that Hulsey
was sufficiently competent to have prepared and filed his petition for habeas
corpus. Indeed, during this time Hulsey requested his medical records from a




       7
         Holland was, of course, decided after the district court entered judgment in this case.
On the facts of this case, we see no reason to remand to the district court for reconsideration
in light of Holland, as none of the principles of equitable tolling stated in our pre-Holland
precedent upon which the district court relied was altered or changed by Holland in any way
that would affect Hulsey’s case.

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                                       No. 09-10991

state hospital, visited and expressed concern about his access to the law library,
and was at one point even apparently working in the law library.
       Hulsey was thus stable and capable of filing his petition for a period of
time that lasted over a year. During this time, he filed neither his state nor his
federal habeas petitions. He offers no explanation for why he was able to file his
state petition in late 2007 and his federal petition in 2009 but was unable to do
so in 2005 or 2006. We will not find an abuse of discretion in the district court’s
refusal to apply equitable tolling where the petitioner’s asserted basis for
equitable tolling still leaves more than a full year of “AEDPA time.”                    See
Wickware v. Thaler, No. 09-20136, 2010 U.S. App. LEXIS 25465, at *14–16 (5th
Cir. Dec. 13, 2010) (unpublished) (citing Coleman v. Johnson, 184 F.3d 398, 403
(5th Cir. 1999), Hardy v. Quarterman, 577 F.3d 596, 597, 599 (5th Cir. 2009) (per
curiam), and Webb v. Dretke, 165 F. App’x 375, 376 (5th Cir. 2006)
(unpublished)).8      To do so would be inconsistent with the one-year time
limitation in § 2244(d)(1)(A). As a result, we do not reach the question of the
alleged missing records from 2003 and 2004.
                                     IV. Conclusion
       The judgment of the district court is therefore AFFIRMED. Hulsey’s
pending motions before this court for appointment of counsel, for appointment
of a psychiatric expert, and to compel production of the 2003 and 2004 medical
records are DENIED.




       8
         We cite Wickware, which is non-precedential, for its persuasive value on very similar
facts. Cf. 2010 U.S. App. LEXIS 25465, at *15 (“Wickware [had] the equivalent of at least
fourteen total months of AEDPA time even accepting his argument for equitable tolling and
subtracting the entire timeframe of the state court habeas proceedings. . . . Even giving him
all benefit of the doubt on this argument, then, Wickware’s federal petition is untimely. ”).

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