                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 24, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-70052


WILLIE MARCEL SHANNON,

                                              Petitioner-Appellant,

versus

DOUG DRETKE, Director, Texas Department
of Criminal Justice, Correctional
Institutions Division,

                                               Respondent-Appellee.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                           (4:02-CV-00819)
                        --------------------

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

PER CURIAM:*

     Petitioner-Appellant Willie Marcel Shannon (“Shannon”) applies

for a certificate of appealability (COA) on the issue whether the

district court properly dismissed his federal habeas petition as

untimely.      For the following reasons, we find that Shannon’s

application is without merit.

I.   BACKGROUND AND PROCEEDINGS

     In November 1993, Shannon was convicted and sentenced to death

for the carjacking and murder of Benjamin Garza.   The Texas Court


     *
       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this opinion should not be published and is not precedent except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.
of    Criminal   Appeals   affirmed   on   December   11,   1996.   Shannon

declined to seek review in the United States Supreme Court within

90 days, so his conviction became final on April 29, 1997.2

Shannon filed his state application for post-conviction relief on

April 13, 1998, and the Texas Court of Criminal Appeals denied it

on September 12, 2001.

       On March 1, 2002, Shannon filed for federal habeas relief.

The State moved the district court to deny Shannon’s petition as

untimely.      In July 2005, the district court granted the State’s

motion to dismiss and denied Shannon a COA on its dismissal.

II.    DISCUSSION

       A.     Standard of Review

       When a petitioner seeks a COA for a district court’s dismissal

of his habeas petition on a procedural ground, such as time bar, he

must prove to us that reasonable jurists could debate whether the

district court’s procedural ruling was correct.3            In addition, he

must demonstrate that reasonable jurists could debate whether his

underlying petition states a valid claim of a denial of his

constitutional rights.4       In making the second determination, we


       2
      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 the prisoner declines to seek review in
the United States Supreme Court).
       3
        Slack v. McDaniel, 529 U.S. 473, 484 (2000).
       4
        Id.

                                      2
consider    the   district   court   pleadings,   the   record,   and   the

petitioner’s application for a COA.5          “If those materials are

unclear or incomplete,” we will resolve the issue in favor of the

petitioner.6

     B.     Applicable Law

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

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

habeas petition.7    Thus, 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-conviction relief is pending.8          We

have recognized that the AEDPA limitations period is subject to

equitable tolling in “rare and exceptional circumstances.”9

     C.     Merits

     Shannon concedes that he filed his federal habeas petition

after the AEDPA limitations period had expired.          This is because

the limitations period began to run on April 29, 1997, when his

conviction became final.      Not quite one year later, on April 13,


     5
      Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
     6
      Id.
     7
      28 U.S.C. § 2241(d).
     8
      Id. at § 2244(d)(2).
     9
      Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).

                                     3
1998, Shannon filed for state post-conviction relief.          Shannon’s

state petition stopped the AEDPA clock with 17 days remaining in

which he could timely file a federal habeas petition.           When the

state court denied his petition on September 12, 2001, the AEDPA

limitations period began to run again.      More than 150 days later,

Shannon filed his federal petition for post-conviction relief, long

after those remaining 17 days had passed.        Shannon’s petition is

therefore untimely.

     Shannon nevertheless contends that his petition is timely

because he is entitled to equitable tolling, citing to an Agreed

Order of Dismissal Without Prejudice in a class action case, Pyles

v. Dretke.10 In that case, the plaintiff class included Texas death

row inmates who had not filed for state post-conviction relief and

were affected by a new state statute specifying that state habeas

petitioners were entitled to appointed counsel for their post-

conviction     proceedings.    The   plaintiff   class   and   the   State

stipulated in the Order of Dismissal that the time between a

prisoner’s request for state habeas counsel and the time counsel

was appointed would not count toward the calculation of the AEDPA

limitations period.

     Here, the parties dispute whether the stipulation applies to

Shannon, but we conclude —— as did the district court —— that even

if it does, it is of no help to Shannon.     He requested counsel for


     10
          No. 396-CV-2838-D (N.D. Tex. Dec. 2, 1996).

                                     4
his state habeas proceedings, and counsel was appointed July 10,

1997. Assuming arguendo that the Pyles stipulation tolls the AEDPA

limitations period here, it would have enlarged the time in which

Shannon could file his federal application by only 72 days.                         As

Shannon’s petition was more than 150 days late, his                    petition was

still untimely,       even   with    the       putative     benefit   of   the    Pyles

stipulation.

     Undeterred,      Shannon       urges       that   we    equitably     toll    the

limitations period to permit the filing of his petition.                   He argues

that the State, in failing to inform him of the Pyles stipulation,

actively misled him as to the deadline for filing his habeas

petition and caused him to file his petition late.                    First, Shannon

raised this equitable tolling theory for the first time in a Rule

59(e) Motion to Alter or Amend the Judgment.                   A Rule 59(e) motion

“must ‘clearly establish either a manifest error of law or fact or

must present newly discovered evidence.                   These motions cannot be

used to raise arguments which could, and should, have been made

before the judgment issued. Moreover, they cannot be used to argue

a case under a new legal theory.’”11

     Even   if   we   were    inclined         to   consider    the    substance    of

Shannon’s argument, we would conclude that it is wholly without

merit.    We have repeatedly noted that equitable remedies are not


     11
      Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005)
(quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.
1990)).

                                           5
intended for those who sleep on their rights.12    Shannon complains

that the State’s allegedly misleading behavior induced him to file

his petition late.      The circumstances of the proceedings below,

however, render Shannon’s assertion dubious at best.    Assuming the

applicability of the Pyles stipulation, Shannon had approximately

70 days from his first appearance in federal court to file his

habeas petition, and approximately 40 days in which to do so after

appointment of federal habeas counsel.        Shannon, however, did

nothing during that time.

     Moreover, the district court’s scheduling order set a January

2, 2002 filing deadline for Shannon’s habeas petition, yet he did

not file his petition until March 1, 2002 —— almost 60 days after

his petition was due under the scheduling order and more than 150

days after his initial filing in federal court.       We do not note

Shannon’s non-compliance with the scheduling order to imply that

filing by the deadline set in such an order necessarily insulates

a petitioner from AEDPA’s limitations period:      It does not.13   We

mention it only as further evidence of his lack of vigilance in

pursuing his habeas petition.       Considering the totality of the

circumstances, we are convinced that Shannon is not entitled to

equitable remedy.14     The district court’s denial of a COA is

     12
          See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999).
     13
          See Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002).
     14
      Because Shannon’s equitable tolling arguments are
groundless, we need not consider the State’s additional, and also

                                   6
AFFIRMED.




potentially dispositive, points that (1) Shannon cannot urge
before this court arguments he raised for the first time in a
Rule 59 motion in the district court, and (2) Shannon failed to
comply with Slack because he has not asserted any constitutional
claims that could be debatable among reasonable jurists.

                                7
