                         Revised August 16, 1999

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 98-10394
                             Summary Calendar
                          _____________________


CALVIN BURNETT COLEMAN,

                                                   Petitioner-Appellant,

                                   versus

GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,

                                             Respondent-Appellee.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Northern District of Texas
_________________________________________________________________
                          August 3, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:

     In   this   case,   Coleman   appeals   a   district   court   ruling

dismissing one habeas petition as time-barred and ruling against

Coleman on the merits on a second habeas petition.            Finding no

error on the part of the district court, we affirm.
                                           I

      On November 15, 1989, Calvin Burnett Coleman, now a Texas

inmate, pled       guilty    to    two   separate      indictments.      The   first

indictment       charged    Coleman      with     possession     of    cocaine    on

February    7,    1989.      The    second       indictment    charged   him     with

possession of cocaine on April 4, 1989.                The trial court imposed a

five-year probation term for the first offense.                 In 1992, however,

the probation term was revoked and Coleman was sentenced to ten

years in prison.      Coleman apparently did not appeal.

      In 1996, Coleman filed two state actions for postconviction

relief, attacking his convictions as to both 1989 guilty pleas.

The application challenging the conviction on the February 7 charge

was stamped “filed” on October 24, 1996, while the application

attacking the conviction on the April 4 charge was stamped “filed”

on September 12, 1996.        Both applications were purportedly signed

by Coleman on September 4, 1996.                 In both applications, Coleman

contended, inter alia, that his guilty pleas were invalid because

he received ineffective assistance of counsel in several respects.

In   both   cases,    the     trial      court    recommended     that   Coleman’s

applications be denied on the merits.                 On May 28, 1997, the Texas

Court of Criminal Appeals denied both applications without written

orders and without hearings.

      On December 9, 1997, Coleman filed this § 2254 habeas petition

in   district     court,    challenging        both   1989   guilty   pleas.      The



                                           2
petition was purportedly executed on December 3, 1997, but no

certificate of service was attached.              Coleman contended that the

pleas were involuntarily entered due to ineffective assistance of

counsel.    The respondent contended that Coleman’s petition was

time-barred by the one-year limitations period prescribed in 28

U.S.C. § 2244(d), even if Coleman were granted a one-year grace

period from April 24, 1996, effective date of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”).

     The   magistrate    judge   recommended        that   Coleman’s      petition

attacking the conviction for the February 7 offense be dismissed as

time-barred.      The magistrate judge reasoned that, even if the

limitations period were deemed tolled by the pendency of Coleman’s

state postconviction application between October 24, 1996 (the date

that his application was filed) and May 28, 1997 (the date it was

denied),   more   than   one   year   had    passed       between   the   AEDPA’s

effective date and the date Coleman filed his § 2254 petition.

     Coleman submitted with his objections to the recommendation an

affidavit in which he attested that, although his state application

challenging the conviction in the February case was not stamped

“filed” until October 24, 1996, it was in fact submitted for

mailing    to   the   state   clerk   at    the    same    time   as   his   other

application, on September 4, 1996.           The district court overruled

objections by both parties and dismissed Coleman’s petition with

regard to the conviction in the instant case as time-barred.                   The



                                      3
court subsequently denied Coleman’s petition on the merits with

respect to his guilty plea on the April 4 charge.           Coleman timely

filed a notice of appeal.

     On November 3, 1998, this court granted Coleman a COA on the

issue of whether his petition challenging the conviction in the

instant case was time-barred.    The court called specific attention

to   Coleman’s   assertions   that       his   submission   of   his   state

postconviction application for mailing on September 4, 1996, should

have tolled the limitations period for filing his § 2254 petition

from that date, rather than from October 24, 1996, the date the

application was stamped “filed” by the Texas Court.




                                     4
                                      III

     Coleman raises two separate issues.                    With respect to the

habeas petition that the district court held was time-barred,

Coleman argues that, because he mailed his state habeas application

approximately two months before it was filed, he should be entitled

to an extension of the limitations period under § 2244(d)(1).                     The

second issue raised by Coleman is whether the district court erred

in ruling against him on the merits with respect to his second

habeas petition.       We address each argument in turn.

                                         A

     Coleman contends that the district court erred in dismissing

his challenge to his conviction in the instant case as being barred

by the one-year limitations period.                 He again asserts that he

signed his state postconviction action challenging that conviction

on September 4, 1996.        Coleman contends that, under the “mailbox

rule”   of   Houston    v.   Lack,   487       U.S.   266    (1988),      his   state

application should have been deemed filed on that date rather than

on October 24, 1996, the date it was stamped “filed.” Anticipating

that the respondent will contend that only state rules should

govern the filing dates of state applications, Coleman contends

that, under Tex.R.Civ.P. 5, such filing is governed by a “legible

postmark,”    which     in   his   own       case   shows    a   filing    date    of

September 5, 1996. For the first time, Coleman also maintains that

the tolling period should be similarly extended on the opposite



                                         5
side of the period during which his state application was pending:

he asserts that, although the Texas Court of Criminal Appeals

denied his state postconviction application on May 28, 1997, he did

not receive notice of the denial until June 10, 1997.      He argues

that these days should be added to the tolling period as well, as

such delay is “beyond a prisoner’s control.”

     Under the amended § 2244(d),

     (1) [a] 1-year period of limitation shall     apply to an
     application for a writ of habeas corpus by    a person in
     custody pursuant to the judgment of a State   court. The
     limitation period shall run from the latest   of--

          (A) the date on which the judgment became
          final by the conclusion of direct review or
          the expiration of the time for seeking such
          review;

          (B) the date on which the impediment to filing
          an application created by State action in
          violation of the Constitution or laws of the
          United States is removed, if the applicant was
          prevented from filing by such State action;

          (C) the date on which the constitutional right
          asserted was initially recognized by the
          Supreme Court, if the right has been newly
          recognized by the Supreme Court and made
          retroactively    applicable   to    cases   on
          collateral review; or

          (D) the date on which the factual predicate of
          the claim or claims presented could have been
          discovered through the exercise of due
          diligence.

28 U.S.C. § 2244(d)(1).    Moreover, “[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



                                6
is pending shall not be counted toward any period of limitation

under this subsection.”   § 2244(d)(2).

     A habeas petitioner whose claims otherwise would have been

time-barred because the limitations period would have expired

before the effective date of AEDPA have a grace period until

April 24, 1997, to file their habeas petitions.         Flanagan v.

Johnson, 154 F.3d 196, 201-02 (5th Cir. 1998).        We apply the

statutory tolling provision of § 2244(d)(2) to filings that were

not timely under the grace period.   See Fields v. Johnson, 159 F.3d

914, 916 (5th Cir. 1998).

     Under the “mailbox rule,” a prisoner’s federal habeas corpus

petition is deemed filed when he delivers the petition to prison

officials for mailing to the district court.     Spotville v. Cain,

149 F.3d 374, 376-78 (5th Cir. 1998) (relying on Houston v. Lack

and its progeny).   Under Spotville, Coleman’s § 2254 petition was

“filed” sometime between December 3, 1997, when he signed the

petition, and December 9, 1997, when it was received in district

court.   Accordingly, it was filed approximately 223 to 228 days

beyond April 24, 1997, the date that this court has held to be the

final day of the one-year grace period.    The question before the

district court was whether the pendency of the Coleman’s state

application tolled the limitations period for a sufficient time to

render his § 2254 petition timely.




                                 7
      Both parties’ contentions are based on the “mailbox rule”

promulgated by the Supreme Court in Houston v. Lack.                Houston

itself is concerned only with the 30-day deadline for filing a

notice of appeal in Fed.R.App.P. 4(a)(1); a notice of appeal

submitted by a pro se prisoner is deemed filed as of the moment it

is delivered to prison officials for mailing to the clerk.             See

Houston, 487 U.S. at 268-69.       We have since extended the mailbox

rule to the filing deadlines for various documents by pro se

litigants under specific federal rules and statutes.           See, e.g.,

Cooper v. Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995) (mailbox

rule applies to filing of civil complaint under Fed.R.Civ.P. 5(e));

Thompson v. Raspberry, 993 F.2d 513, 515 (5th Cir. 1993) (filing of

written objections    to     magistrate   judge’s   recommendation   under

Fed.R.Civ.P. 72(b)); Spotville, 149 F.3d at 378 (for purpose of

determining whether the AEDPA applies, habeas petition is deemed

filed when it is delivered to prison authorities for mailing).

Coleman asks us to extend Houston far beyond these holdings: He

asserts that, in the context of addressing whether the pendency of

a   state   postconviction     application   has    tolled   the   one-year

limitations period of § 2244(d)(2), a federal district should apply

the “mailbox rule” to filing of postconviction applications in

state court. Unlike this court’s prior extensions of Houston, such




                                     8
a ruling would require us to interpret state rules of filing and to

address the filing systems of state courts.1

     We decline to extend the mailbox rule to the determination of

filing dates for state habeas applications.                Instead, when a

prisoner asserts that his ability to file a federal habeas petition

has been affected by a state proceeding, we will examine the facts

to determine whether the prisoner is entitled to equitable tolling

under § 2244(d)(1).

     In this case, Coleman’s pro se brief is entitled to liberal

construction.    Humphrey v. Cain, 120 F.3d 526, 530 n.2 (5th Cir.

1997).   We may therefore liberally construe Coleman’s Houston v.

Lack argument to be a contention that his submission for mailing of

his application attacking the conviction in the February case on

September   4,   1996,   entitles   him   to   equitable    toling   of   the

limitation period of § 2244(d)(1).             The one-year limitations

provision “does not operate as a jurisdictional bar and can, in

appropriate exceptional circumstances, be equitably tolled.” Davis

v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), cert. denied, 119

S.Ct. 1474 (1999).

     The district court in Davis had granted a death row habeas

petitioner several extensions between February 1997 and May 1998 to


     1
      As suggested by the respondent, postconviction proceedings in
Texas are governed by criminal rule, see Tex.R.Crim.P. art. 11.07,
not the civil rule cited by Coleman.



                                    9
file his § 2254 petition, but then denied the petition as untimely.

See id. at 808.    Without formulating specific requirements for

determining whether equitable tolling principles should apply in

the § 2244(d) context, this court concluded that the petitioner in

his COA application had made a credible showing that the district

court erred in dismissing his petition as untimely.    Id. at 812.

Davis thus did not involve circumstances like those in Coleman’s

case, in which Coleman essentially contends that delays in the

processing of his state court postconviction application prevented

him from complying with the one-year limitations period.

     “The doctrine of equitable tolling preserves a plaintiff’s

claims when strict application of the statute of limitations would

be inequitable.”   Davis, 158 F.3d at 810 (citation and internal

quotation marks omitted).   “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.”   Rashidi v. American Presidential Lines, 96

F.3d 124, 128 (5th Cir. 1996).        A “‘garden variety claim of

excusable neglect’” does not support equitable tolling.        Id.

(citation omitted).

     If Coleman indeed deposited his state application with prison

officials for mailing on September 4, 1996, as he asserts, and he

were to be granted equitable tolling from that date until the date

it was actually stamped “filed,” the pendence of that application



                                 10
between September 4, 1996, and May 28, 1997, would have tolled the

one-year limitations period for 266 days.                         This would have been

more than sufficient to place the § 2254 claims within the one-year

limitations period of § 2244(d)(1).

       Documents attached by Coleman to his reply to the respondent’s

answer      suggest    that    he     did    mail     both    state      applications     on

September     4   or   5,     1996.         Those    documents       appear    to   support

Coleman’s contention that he mailed both applications in the same

envelope, but that the state clerk mistakenly filed them together

and    separately      filed    the     application          concerning       the   instant

conviction only after Coleman contacted the clerk about the error

approximately one month later.                     The respondent, the magistrate

judge, and the district court failed to address any of these

contentions or documents.

       We    nevertheless      conclude,           however,       that   Coleman    is   not

entitled to equitable tolling.                In order for equitable tolling to

apply, the applicant must diligently pursue his § 2254 relief.                            In

this   case,      Coleman     did     not    file     his     §   2254    petition    until

approximately six months after learning of the denial of his state

postconviction application.                 As this court has noted, “equity is

not intended for those who sleep on their rights.”                         See Fisher v.

Johnson, 174 F.3d 710 (5th Cir. 1999) (citing Covey v. Arkansas

River Co., 865 F.2d 660, 662 (5th Cir. 1989)).                      Coleman should have

attempted to expediently file his federal habeas petition upon



                                              11
receiving notice that his state petition had been denied.               Because

Coleman does not explain the six-month delay between being notified

about his state application and filing his federal petition, we

hold that his circumstance is not extraordinary enough to qualify

for equitable tolling under § 2244(d)(1).

                                    B

     In his appellate brief, Coleman urges this court to reconsider

its denial of his COA application with respect to his challenge to

the April 4 charge.   He asserts that the court erred in determining

that his ineffective assistance of counsel claims regarding that

conviction were not adequate to deserve encouragement to proceed

further.    Coleman   has    presented    nothing      in   his   request    for

reconsideration that would alter the ruling on the COA application.

We therefore deny Coleman’s request for reconsideration.

                                   III

     For   the   foregoing   reasons,    we   AFFIRM    the    ruling   of   the

district court dismissing Coleman’s habeas petition with respect to

the February 7 charge as time-barred.             We further AFFIRM the

district court’s ruling on the merits with respect to the April 4

charge.

                                                              A F F I R M E D.




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