                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                         REVISED AUGUST 2, 2006
                 IN THE UNITED STATES COURT OF APPEALS             July 18, 2006

                         FOR THE FIFTH CIRCUIT               Charles R. Fulbruge III
                                                                     Clerk


                             No. 05-70035


ARNOLD PRIETO,

                                                  Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, Director, Texas Department
of Criminal Justice, Correctional
Institutions Division,

                                                   Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                        (SA-01-CA-1145-OG)
                       --------------------

Before JONES, Chief Judge, WIENER and DeMOSS, Circuit Judges.

WIENER, Circuit Judge:

     Petitioner-Appellant     Arnold   Prieto    appeals   the    district

court’s dismissal of his petition for post-conviction relief.            For

the following reasons, we reverse the district court’s ruling that

Prieto’s petition was untimely, as well as the district court’s sua

sponte application of the procedural-default rule to Prieto’s jury-

misconduct claim.      We therefore remand for further proceedings

consistent with this opinion.
                     I. BACKGROUND AND PROCEEDINGS

      Prieto was convicted of murder and sentenced to death in March

1995.      He appealed both his conviction and sentence, and on

December 16, 1998, the Texas Court of Criminal Appeals affirmed

both.      Prieto declined to seek review from the United States

Supreme Court, and his conviction and sentence became final ninety

days later, on March 17, 1999.1

      Prieto filed an application for state post-conviction relief

on October 8, 1999, asserting 66 grounds for relief.        In July 2001,

the state court issued its findings of fact, conclusions of law,

and   recommendation   that   Prieto’s   application   be   denied.   On

November 28, 2001, the Texas Court of Criminal Appeals denied

Prieto’s petition.

      Prieto then sought habeas corpus relief in federal court. The

district court issued an order appointing counsel for Prieto and

setting filing deadlines.       Under the court’s scheduling order,

Prieto’s habeas petition was due by May 3, 2002.             On April 16

Prieto moved for, and the district court granted, an extension of

time to file his habeas petition.         Under the district court’s

order, Prieto’s petition was due by September 6, 2002.         On August

2, 2002, more than a month before that deadline, Prieto filed his


      1
          Foreman v. Dretke, 383 F.3d 336, 340 (5th Cir. 2004)
(Texas    prisoner’s conviction is final for purposes of federal
habeas    review 90 days after the Texas Court of Criminal Appeals
denies    petition for review and defendant declines to seek review
in the    United States Supreme Court).

                                   2
habeas petition.    The State responded with a motion to dismiss on

the ground that Prieto’s petition was untimely because he filed it

after the applicable limitations period expired.

     Following extensive additional briefing, the district court

dismissed Prieto’s habeas petition as untimely.       Ruling in the

alternative, the district court dismissed Prieto’s petition on

various substantive grounds.       The court then granted Prieto a

certificate of appealability (“COA”) on two issues: First, whether

the court erred in dismissing Prieto’s petition as untimely; and

second, whether Prieto procedurally defaulted on his claim of jury

misconduct.    The district court denied Prieto’s COAs on his other

claims, and we affirmed the district court’s decision to deny those

COAs in an unpublished opinion.

                            II. TIMELINESS

     A.     Statutory Tolling

     The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

provides a one-year limitations period for the filing of a federal

petition for post-conviction relief.2     Specifically, a petitioner

must file his petition within one year from the date that his

conviction becomes final.       The one-year statute of limitations,

however, is not absolute.       AEDPA provides that the limitations

period is tolled while a properly-filed application for state post-




     2
         28 U.S.C. § 2241(d).

                                   3
conviction relief is pending.3           We review a district court’s

decision on statutory tolling de novo.4

     As noted, Prieto’s conviction and sentence became final on

March 17, 1999.    Prieto filed his state habeas petition 215 days

later, thus tolling the AEDPA limitations period.             This tolling

ceased on November 28, 2001, when the Texas Court of Criminal

Appeals denied his application.     At that time, Prieto had 150 days

remaining in which to file his federal habeas petition. Therefore,

to be timely, Prieto had until approximately the end of April 2002

to file for federal post-conviction relief.         Instead, Prieto filed

his habeas petition almost 100 days late, on August 2, 2002.            The

district court’s    well-reasoned       opinion   addresses   and   properly

rejects Prieto’s claims that he is entitled to additional statutory

tolling.    Accordingly, we adopt the district court’s opinion with

respect to statutory tolling.

     B.     Equitable Tolling

     In addition to statutory tolling, we have recognized that the

AEDPA limitations period is subject to equitable tolling in “rare

and exceptional circumstances.”5          We review a district court’s

decision on equitable tolling for abuse of discretion, remaining

ever mindful, however, that “[w]e must be cautious not to apply the


     3
         Id. at § 2244(d)(2).
     4
         Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002).
     5
         Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).

                                    4
statute of limitations too harshly.”6              Dismissing a habeas petition

is a “particularly serious matter.”7               This is why we look to the

facts and circumstances of each case to determine whether the

district       court   abused    its    discretion    in   declining    to   apply

equitable tolling.8

     Although      Prieto   is    not    entitled     to   additional   statutory

tolling, we conclude that his circumstances are sufficiently rare

and exceptional to warrant equitable tolling.                 In mid-April 2002,

Prieto filed a motion in the district court for an extension of

time to file his petition at a later date.                   The district court

granted    Prieto’s       motion,       stating     “[b]efore    the    Court   is

Petitioner’s Motion for Extension of Time to [File] Writ of Habeas

Corpus.    The Court finds that the motion is meritorious and it is

GRANTED.       Petitioner’s writ of habeas corpus shall be filed no

later than September 6, 2002.” Under this order, Prieto’s petition

appears to have been due long after his time to file expired under

AEDPA.     Although      AEDPA    applied     to   Prieto’s     application,    the

district court’s order granting him additional time for the express

purpose of filing his petition at a later date was crucially

misleading.       Prieto relied on the district court’s order in good

faith and to his detriment when he filed his petition.                  As Prieto



     6
         Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
     7
         Id.
     8
         Id.

                                          5
submitted his petition within the time expressly allowed him by the

district court, he is entitled to equitable tolling.

     This case is an almost perfect analog to Davis v. Johnson.9

Like Prieto, the petitioner in Davis was sentenced to death and,

like Prieto, moved for and was granted extensions of time that set

the deadline for filing his habeas petition beyond the AEDPA

limitations period.10     We recognized that a district court’s grant

of motions for extensions of time beyond AEDPA’s limitations period

is likely a “rare and exceptional circumstance[]” that justifies

equitable tolling.11 We therefore assumed without deciding that the

district court erred in declining to grant equitable tolling of the

AEDPA limitations period.12     A decision directly on the merits of

the issue was unnecessary because we then determined that Davis was

not entitled to a COA on any of his substantive claims.

     On the facts of this case, Prieto is even more deserving of

equitable tolling than was Davis.        Prieto was much more diligent in

securing his extension of time. Specifically, Prieto requested and

received his extension of time before the deadline to file his

habeas petition passed.      In contrast, Davis failed to move for an




     9
          158 F.3d 806.
     10
          Id. at 808.
     11
          Id. at 808 n. 2, 811-12.
     12
          Id. at 808 n. 2.

                                     6
extension of time until more than seven months after his petition

was due.13

     In    United   States   v.    Patterson,   we   equitably   tolled   the

limitations period for a petitioner because he, too, relied on the

actions of the district court when he filed his habeas petition

after the AEDPA limitations period had expired.14            Specifically,

Patterson had moved the district court to dismiss his then-pending

petition so that he could obtain professional legal aid and re-

submit his case to the court.15        Ironically, the day that the court

granted Patterson’s motion to dismiss was the final day of the

AEDPA limitations period; after that date, any future filings were

untimely.16   As Patterson “relied to his detriment on the district

court’s granting of his [motion to dismiss]” we were “persuaded

that these circumstances are sufficiently rare and extraordinary to

warrant equitable tolling.”17

     The government’s only response to Prieto’s contention that he

is entitled to equitable tolling on these facts is its discussion

of Fierro v. Cockrell.18          In Fierro, the district court issued a



     13
          Id. at 808.
     14
          211 F.3d 927 (5th Cir. 2000).
     15
          Id. at 931-32.
     16
          Id. at 932.
     17
          Id. at 931-32.
     18
          294 F.3d 674 (5th Cir. 2002).

                                       7
scheduling order at the government’s request, and the order set the

deadline for Fierro’s habeas petition outside the AEDPA limitations

period.19 Thus, Fierro argued that the scheduling order induced him

to file late.20       The scheduling order, however, was issued three

weeks after the AEDPA limitations period expired.21             Accordingly,

we declined to apply equitable tolling because “the state’s request

and the district court’s order could not have contributed to

Fierro’s        failure   to   comply   with   the   one-year   statute   of

limitations.”22

     The likelihood that a district court’s order will actually

mislead a petitioner into believing that his petition is due beyond

the AEDPA limitations period is the critical distinction between

Fierro and Patterson.          There was evidence in Patterson that the

district court’s order led the petitioner to believe that the court

would entertain his petition at a later date, i.e., a date that was

necessarily beyond AEDPA’s limitations period.            This is why, in

Fierro, we recognized the propriety of granting equitable tolling

when “the prisoner relied to his detriment on the district court’s

decision to dismiss for the express purpose of allowing later




     19
          Id. at 683.
     20
          Id.
     21
          Id.
     22
          Id. at 683-84.

                                        8
refiling.”23     In contrast, there was no possibility that the Fierro

court’s scheduling order contributed to the petitioner’s tardiness

because that order was issued after the AEDPA deadline had already

expired.

     Like Patterson, Prieto relied to his detriment on the district

court’s order issued for the express purpose of granting him

additional time to file his writ of habeas corpus.                Significantly,

as quoted above, the district court’s order granting Prieto’s

motion    stated:      “Before   the   Court   is   Petitioner’s     Motion   for

Extension of Time to [File a] Writ of Habeas Corpus.                    The Court

finds     that   the    motion    is   meritorious     and   it    is    GRANTED.

Petitioner’s writ of habeas corpus shall be filed no later than

September 6, 2002.”          Orders such as these have the effect of

“unintentionally misl[eading] the prisoner,”24 and, considering the

totality of the circumstances, may warrant equitable tolling.

Accordingly, the State’s reliance on Fierro is misplaced.                 Indeed,

Fierro militates in favor of granting Prieto equitable tolling.

     After careful consideration of the particular circumstances of

this case —— most importantly, the court-ordered extension of time

—— and a review of the record, we are persuaded that the district

court erred in not granting equitable tolling of the statute of

limitations.      We therefore do not reach the alternative theory on


     23
          Id. at 682 (emphasis added).
     24
          Id.

                                         9
which Prieto seeks equitable tolling, i.e. whether the State’s

appointment of a lawyer who was battling cancer at the time

warrants equitable remedy.      As Prieto’s petition is not time-

barred, we must address the merits of the second issue on which the

district court issued a COA:    Whether the district court properly

raised the issue of procedural default sua sponte to dispose of

Prieto’s jury-misconduct claim, never reaching the merits.

                       III. PROCEDURAL DEFAULT

     A.     Waiver

     The State urges us to rule that Prieto waived the argument

that the district court erred in raising the affirmative defense of

procedural default sua sponte.         This is because Prieto first

expressly addresses the sua sponte facet of the procedural default

issue in his reply brief and not in his initial brief.   “Generally,

we will not consider an issue raised for the first time in a reply

brief.”25    This, however, is not the case before us.

     In the light of all of the facts and circumstances, we view

Prieto’s initial brief as sufficiently presenting —— and thus

preserving —— the entire issue of procedural default, including,

without limitation, the lesser included question whether it was

improper for the district court to raise the affirmative defense of

procedural default sua sponte. Significantly, the district court’s

order granting Prieto a COA on the procedural default issue states,


     25
          U.S. v. Avants, 367 F.3d 433, 449 (5th Cir. 2004).

                                  10
inter alia, “Petitioner is GRANTED a Certificate of Appealability

with    regard    to...    whether     this   Court   properly   held...   that

petitioner procedurally defaulted on his [jury-misconduct] claim.”26

Read plainly, the district court’s order expressly granted a COA on

its substantive application of the procedural-default rule to

Prieto’s jury misconduct claim.               And Prieto fully briefed this

issue in his initial brief to us.

       Looking beyond the district court’s order of certification to

its memorandum opinion reveals that a necessary component of the

procedural default issue in this case is whether the district court

properly raised that affirmative defense sua sponte.                We cannot

address the substance of the district court’s procedural default

ruling without, at the same time, considering whether it was

properly raised in the first place —— these facets of the issue are

inextricably intertwined.          In light of the language of the order

granting      Prieto   a   COA   and   Prieto’s   initial   brief   thoroughly

addressing the substantive aspect of the procedural default ruling,

the State’s attempt to parse the COA so narrowly to obtain a waiver

ruling from this court on the sua sponte sub-issue of procedural

default is inappropriate. We are satisfied that Prieto effectively

raised the entire procedural default issue, including the district

court’s raising it sua sponte, by addressing its substance in his

initial brief.


       26
            Emphasis added.

                                         11
     Moreover, even if Prieto’s initial brief did not raise the

procedural default issue in its entirety, we would still consider

his argument.    This is because we have been loathe to default a

petitioner for a failure to brief when the terms of a COA are

arguably misleading.27   To repeat for emphasis, the order granting

the COA could lead one to conclude that only the court’s application

of the procedural default rule is at issue on appeal.   In addition

to the language of the order granting Prieto a COA, there is the

section of the memorandum opinion applying procedural default, which

does not mention that the court raised the affirmative defense sua

sponte.   Only when we read the end of the section of the memorandum

opinion that addresses Prieto’s various applications for COAs does

it become apparent that not only did the district court grant a COA

on the ground of procedural default, but that the COA thus granted

included the question whether the district court properly raised

procedural default sua sponte.28

     27
       Williams v. Cain, 217 F.3d 303, 305 (5th Cir. 2000)
(excusing a complete failure to brief a particular issue and
addressing it on the merits because the COA was arguably
misleading).
     28
       Furthermore, the State argues for the first time on
appeal that Prieto’s jury-misconduct claim is procedurally
barred. We have repeatedly held that “[t]he government must
invoke the procedural bar in the district court to raise it
here.” See United States v. Kallestad, 236 F.3d 225, 227 (5th
Cir. 2000); see also United States v. Drobny, 955 F.2d 990, 995
(5th Cir. 1992)(“To invoke the procedural bar...the government
must raise it in the district court”). Had the district court
not raised the affirmative defense for the State, the issue would
not even be before us. In this context, we reject the State’s
over-parsing of the district court’s COA so as to claim that

                                   12
     B.     Merits

     A district court may, in its discretion, raise the affirmative

defense of procedural default in habeas proceedings sua sponte.29

“We note, however, that though a court may invoke procedural default

sua sponte, it should not do so lightly.”30          Instead, our decision

should be “informed by those factors relevant to balancing the

federal   interests   in   comity   and   judicial    economy   against   the

petitioner’s substantial interest in justice.”31        Before raising the

affirmative defense sua sponte, the district court should consider

(1) whether the petitioner had notice that the district court was

going to raise the defense sua sponte and had an opportunity to

respond, and (2) “whether the state’s failure to raise the defense

is merely inadvertence or the result of a purposeful decision to

forgo the defense.”32

     We have opted for a relatively flexible standard in this area

rather than a per se rule.    And, the cases we have decided that deal

with this narrow issue have created a logical continuum that is

useful in the resolution of this case.               First, we have never



Prieto waived the sua sponte facet of the procedural-bar issue.
     29
          Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998).
     30
          United States v. Willis, 273 F.3d 592, 597 (5th Cir.
2001).
     31
          Magouirk, 144 F.3d at 360.
     32
          Id.

                                    13
approved of the sua sponte application of the procedural bar defense

when the petitioner has absolutely no notice or opportunity to

respond.33    Conversely, we have approved a district court’s decision

to raise the procedural default defense on its own motion when the

petitioner had notice that the court would consider doing so.34

     Furthermore,     we   have   been    persuaded   that   the   sua   sponte

application of the procedural default rule is appropriate when the

record reveals that the State’s failure to assert the defense was

most likely the result of inadvertence.35             For example, we have

found that the State inadvertently failed to assert the defense when

the petitioner’s pleadings were so muddled that the State could not

have fairly anticipated that the petitioner was making a claim to

which the procedural bar applied.36            And, in that example, we

approved the court’s decision to raise procedural default sua




      33
       Johnson v. Cain, 215 F.3d 489, 493-95 (5th Cir. 2000);
Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999).
      34
       United States v. Willis, 273 F.3d 592, 597 (5th Cir.
2001) (the petitioner had notice by way of the magistrate judge’s
report and recommendation to the district judge, to which the
petitioner had ample time to respond and address the procedural
default defense); Magouirk, 144 F.3d at 350, 360 (same).
      35
       Magouirk, 144 F.3d at 360 (finding that the State’s
failure to raise procedural default was the result of
inadvertence when the State’s argument rested on the petitioner’s
failure to exhaust his state remedies, but his remedies were
technically exhausted because he failed to raise them in state
court before they became time-barred).
      36
           Willis, 273 F.3d at 597.

                                     14
sponte.37      When there is nothing before us but the State’s bald

assertion that its failure to assert the affirmative defense was

inadvertent, however, we have rejected the sua sponte application

of the procedural default rule.38

       It is against this backdrop that we consider the propriety of

the district court’s decision to raise the affirmative defense of

procedural bar sua sponte and apply it to Prieto’s jury-misconduct

claim.      Neither Prieto nor the State had notice that the district

court was going to consider procedural bar.               Unlike Magouirk and

Willis, in this case there was no magistrate judge’s report and

recommendation to the district judge alerting the parties that

procedural default would be at issue.              Under these circumstances,

it was an abuse of discretion for the district court to raise the

issue of procedural bar sua sponte.                We therefore remand with

instructions to the district court (1) to address the issue of

procedural bar after giving Prieto and the State opportunities to

make   their      legal   positions   known   to    the   court,   then   (2)   if

appropriate, to address the merits of Prieto’s jury misconduct claim

for habeas relief.

REMANDED with instructions.


       37
            Id.
       38
       See Fisher, 169 F.3d at 302 (noting that the State
claimed that its failure to assert the defense was inadvertent,
but observing that even if it was, it was error to raise
procedural bar sua sponte because of strong concerns regarding
lack of notice).

                                       15
16
