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

                                                                            FILED
                                                                          March 17, 2008

                                       No. 05-10020                   Charles R. Fulbruge III
                                                                              Clerk

THOMAS LANE COKER

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, 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. 3:03-CV-2146


Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       This Court granted Thomas Lane Coker a Certificate of Appealability
(“COA”) solely on the issue of whether the limitations period should have been
equitably tolled because he did not receive notice of the denial of his state habeas
application. Coker v. Dretke, No. 05-10020, slip op. at 2 (5th Cir. June 8, 2006).
For the following reasons, the district court’s denial of habeas corpus relief is
REVERSED and REMANDED.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 05-10020

                      I. FACTS AND PROCEEDINGS
      Coker was convicted after a bench trial of being a felon in possession of a
firearm and he was sentenced to an enhanced forty-year term of imprisonment.
The Texas Court of Criminal Appeals (“TCCA”) affirmed his conviction on
October 21, 1999, and denied his petition for discretionary review on February
9, 2000. Coker filed a state application for post-conviction relief on October 19,
2000. The TCCA denied the application without a written order on January 31,
2001. Proceeding pro se, Coker filed a federal habeas corpus petition pursuant
to 28 U.S.C. § 2254 on September 22, 2003, arguing that (1) his conviction was
based on evidence seized during an illegal search, (2) there was insufficient
evidence to support his conviction, (3) he received ineffective assistance of trial
and appellate counsel, and (4) the statute of conviction was vague and overly
broad. The government contended that Coker’s petition should be dismissed as
untimely because he did not file within the one-year statute of limitations made
applicable to § 2254 petitions by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). 28 U.S.C. § 2244(d). On December 3, 2003, the district court
dismissed Coker’s petition and entered judgment, adopting the magistrate
judge’s November 24, 2003 denial of Coker’s § 2254 petition as time-barred.
      Coker then moved for a new trial, arguing that the district court entered
final judgment before the ten-day period for filing objections to the magistrate
judge’s report and recommendations had expired. The district court granted
Coker’s motion, vacated its December 3, 2003 entry of final judgment, and
granted Coker’s request for an extension of time to file his objections.
      In his objections to the magistrate judge’s report, Coker argued that the
limitations period for filing a § 2254 petition should have been equitably tolled
based on his failure to receive notice that his state habeas corpus application had
been denied. He attached a number of exhibits to his objections, including copies
of letters mailed to the TCCA in June 2001 and June 2002, requesting

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information regarding the status of his state habeas corpus application. He
indicated that he never received a response to those letters. Coker also included
a memorandum of law in support of his state habeas corpus application, which
he mailed to the TCCA in June 2003, thinking that the application was still
pending. He indicated that he finally received a letter from the TCCA dated
December 5, 2003, informing him that his state habeas corpus application had
been denied.
      The district court overruled Coker’s objections, accepted the magistrate
judge’s report and recommendations, and dismissed the case. Coker timely
appealed. The district court denied Coker’s motion to proceed in forma pauperis
on appeal and denied his request for a COA.
      This Court granted Coker a COA solely on the issue of whether the
limitations period should have been equitably tolled because he did not receive
notice of the denial of his state habeas corpus application. Coker v. Dretke, No.
05-10020, slip op. at 2 (5th Cir. June 8, 2006).
                        II. STANDARD OF REVIEW
      This Court reviews the denial of equitable tolling for abuse of discretion.
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). “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, but we draw on general principles
to guide when equitable tolling is appropriate.” Id.
                               III. DISCUSSION
A.    Period of Limitation for Filing § 2254 Habeas Applications
      Generally, a state prisoner must file a § 2254 habeas corpus application
within one year of the date that his judgment “became 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). The time during which a properly filed application for state
habeas relief or other collateral review is pending, however, is not counted

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toward the limitations period. § 2244(d)(2); see also Fields v. Johnson, 159 F.3d
914, 916 (5th Cir. 1998).
       The judgment against Coker became final on May 9, 2000, after the
expiration of the ninety-day period for filing a petition for writ of certiorari with
the Supreme Court. See SUP. CT. R. 13.1. Accordingly, Coker had one year from
May 9, 2000 in which to file a § 2254 petition. He allowed approximately 162
days to pass before he filed his state habeas corpus application on October 19,
2000. The federal limitation period was tolled approximately three months
while Coker’s state habeas application was pending, from October 19, 2000 until
January 31, 2001, the date that the TCCA denied his application without written
order. Coker had until mid-August 2001 to file a § 2254 petition. Because he did
not file his § 2254 petition until September 2003, the district court dismissed the
petition as time-barred. Coker argues that because he did not receive notice of
the TCCA’s January 31, 2001 denial of his state habeas corpus application until
December 11, 2003, the federal limitation period should have been equitably
tolled until the date he actually received notice of the denial.
B. Equitable Tolling
       The one-year federal limitations period is subject to equitable tolling only
“in rare and exceptional circumstances.” United States v. Patterson, 211 F.3d
927, 928 (5th Cir. 2000).1 The doctrine “applies principally where the plaintiff

       1
         The government argues that the recent Supreme Court holding in Bowles v. Russell,
127 S.Ct. 2360 (2007), removes our jurisdiction in this case. We disagree. The Court in Bowles
prohibited courts from creating equitable exceptions to jurisdictional requirements, such as the
time for filing a notice of appeal. Id. at 2366. This Circuit does not view the AEDPA
limitations period as a jurisdictional bar. We wrote:
              A plain reading of the language of [28 U.S.C.] § 2244, which contains the
       AEDPA limitations period, leads to the conclusion that Congress intended that
       the limitations period be interpreted as a statute of limitations. The limitations
       period does not speak in jurisdictional terms and does not explicitly refer to any
       limitations on jurisdiction. . . .

              . . . When Congress amended the habeas corpus provisions by enacting

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is actively misled by the defendant about the cause of action or is prevented in
some extraordinary way from asserting his rights.” Coleman v. Johnson, 184
F.3d 398, 402 (5th Cir. 1999) (internal quotation marks omitted). “‘[E]xcusable
neglect’ does not support equitable tolling.” Ott v. Johnson, 192 F.3d 510,
513–14 (5th Cir. 1999). We have established that a statute of limitations should
be tolled if a petitioner, exercising due diligence, could not timely uncover
essential information that was predicate to his claim. See Pacheco v. Rice, 966
F.2d 904, 906–07 (5th Cir. 1992). “Although we have not found any cases
discussing who bears the burden of proof concerning equitable tolling in the
AEDPA context, we believe the [petitioner] should bear this burden.” Phillips
v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on reh’g, 223 F.3d 797 (5th
Cir. 2000).
       Coker argues that the district court erred in denying equitable tolling and
dismissing his § 2254 petition as untimely. He points to his letters directed to
the TCCA in June 2001 and June 2002 requesting information regarding the
status of his state habeas corpus application as proof of his diligence in tracking
the proceeding. He notes that he never received a response to either letter, but
filed a memorandum of support for his application in June 2003 with the belief
that his application was still pending.               Coker indicates that he became

       AEDPA, it took care to separate jurisdiction provisions from this limitations-
       period provision. The explicit grant of jurisdiction to the district courts relating
       to the habeas writ is contained in 28 U.S.C. § 2241. Congress chose to insert the
       AEDPA limitation amendment into § 2244, which concerns the finality of
       determinations and contains provisions relating to non-jurisdictional limitations,
       such as restraints on duplicative and frivolous litigation. . . .

               . . . We hold, therefore, that the one-year period of limitations in §
       2244(d)(1) of AEDPA is to be construed as a statute of limitations, and not a
       jurisdictional bar. As such, in rare and exceptional circumstances, it can be
       equitably tolled.
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (internal quotations and citations omitted).
We read nothing in Bowles that would overturn our decision in Davis. Therefore, we view
Bowles to be inapposite to the case at bar.

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                                       No. 05-10020

“exhausted” with the TCCA and proceeded to file his § 2254 petition in federal
court in September 2003.
       Long delays in receiving notice of state court action may warrant equitable
tolling. See Phillips, 216 F.3d at 511 (“[W]e conclude that the [four-month] delay
in receiving notification . . . could qualify for equitable tolling.); Fisher, 174 F.3d
at 715 (finding that a delay in receiving information for “months and months”
may qualify for equitable tolling). In addition to the requirement that Coker
show a “substantial” delay in receiving notice of the denial of a state habeas
corpus application, to qualify for equitable tolling, he must also have “pursued
the [habeus corpus relief] process with diligence and alacrity” after receiving
that notification. Phillips, 216 F.3d at 511.
       1. When did Coker receive notice of TCCA’s denial of his state habeas
       corpus application?
       The district court did not make a finding of fact regarding Coker’s alleged
non-receipt of notice of the denial of his state habeas application. The record
contains no evidence that refutes Coker’s claim that he failed to receive notice,
and in its brief, the government stops just short of conceding this point.2 The
only record document that apprises Coker of the January 2001 state habeas
application denial is a letter from the TCCA dated December 5, 2003.3

       2
         The government makes no argument refuting Coker’s position that he did not receive
notice of the denial, but instead argues that Coker was not diligent in pursuing habeas corpus
relief. The government presented excerpts from a prison incoming mail log, indicating that
Coker received two pieces of mail from the State Counsel of Offenders dated February 13, 2001
and March 14, 2001. He received nothing from the Texas Court of Criminal Appeals. This log,
therefore, is nondispositive and does not refute Coker’s sworn statements.
       3
         The first time Coker may have become aware that his state habeas corpus application
was denied was when he received the government’s preliminary response to his § 2254 petition.
Coker filed his § 2254 petition on September 22, 2003. On September 26, 2003, the magistrate
judge issued an order noting the possibility of a time bar pursuant to 28 U.S.C. § 2244(d). The
magistrate judge directed the government to provide a preliminary response within sixty days
to identify the date that Coker’s state habeas corpus application was denied and to discuss
whether the § 2254 petition should be time-barred. On November 20, 2003, the government
provided a preliminary response, in which it indicated that Coker’s application had been denied

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       Although we have remanded other cases for an evidentiary hearing
regarding the date that a petitioner first received notice of the denial of a state
habeas corpus application, see id., we decline to do so here. An evidentiary
hearing would likely reveal nothing more than the record presently indicates
and would waste judicial time and resources. Instead, we conclude from the
record that TCCA did not notify Coker of its denial of his state habeas corpus
application until December 2003.
       2. Has Coker shown that he was diligent in pursuing habeas corpus relief?
       The government asserts that Coker has not shown that he was diligent in
pursuing habeas corpus relief, pointing to his delay in filing his state habeas
corpus application following the TCCA’s denial of his petition for discretionary
review and the fact that he did not seek assistance from the State Counsel of
Offenders, an organization providing legal assistance to indigent offenders, to
assess the status of his application. The government also contends that he could
have either filed a writ of mandamus to compel the resolution of the state
application or filed his § 2254 petition and argued that exhaustion of remedies
was futile. Considering the record before us, we do not find these arguments to
be persuasive.
       The record shows that the TCCA refused Coker’s petition for discretionary
review on February 9, 2000. Coker did not seek a writ of certiorari from the
Supreme Court. Therefore, his conviction become final on or about May 9, 2000,
the date of the expiration of the time for seeking direct review, and the one-year
limitations period for filing a federal habeas corpus petition began to run. See
Roberts v. Cockrell, 319 F.3d 690, 694–95 (5th Cir. 2003). Coker filed his state



without written order on January 31, 2001. The government further argued that Coker should
be denied equitable tolling because he failed to pursue habeas corpus relief diligently. Fifteen
days later, on December 5, 2003, the TCCA sent an official letter to Coker, informing him that
his state application had been denied in January 2001.

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application for post-conviction relief on October 19, 2000, after approximately
162 days of the limitations period had passed.
       Coker’s delay of approximately 162 days before filing for state habeas
corpus relief is substantially shorter than the delay of the petitioner in Phillips,
who allowed 286 days of the limitations period to expire before filing a state
habeas corpus petition. 216 F.3d at 510–11. This Court determined that,
although a significant number of days of the limitation period had passed,
Phillips could qualify for equitable tolling if he could establish that he did not
receive notice of the denial of his appeal. Id. at 511. Coker’s delay of 162 days
before filing for state habeas corpus relief does not, in itself, automatically
preclude his eligibility for equitable tolling.
       From the record, it appears that Coker was diligent in pursuing habeas
corpus relief. He sent two letters to the TCCA inquiring about the status of his
application, one dated June 12, 2001, eight months after his petition was filed
and the second letter a year later, dated June 17, 2002.                   He also filed a
supplemental memorandum in support of his state application on June 24, 2003.
The government contends that these are merely self-serving statements;
however, the government has not rebutted Coker’s statements. The government
could have provided outgoing prison mail logs, which the Texas Department of
Criminal Justice possesses, to show whether Coker sent letters to the TCCA.4
Further, the government contends that Coker’s statements are bald assertions
with no evidentiary value.          But Coker has repeatedly made these sworn
statements under penalty of perjury, which qualifies them as competent sworn


       4
         Indeed, the magistrate judge that presided over Coker’s § 2254 petition proceeding has
routinely relied on prison logs to make findings of fact in habeas cases. See Presley v.
Quarterman, No. 3:05-CV-2533, 2007 WL 210115, at *1 (N.D. Tex. Jan. 25, 2007); Brown v.
Dretke, No. 3:02-CV-2277-P, 2006 WL 1627987, at *1 (N.D. Tex. June 12, 2006); Gray v.
Dretke, No. 3-04-CV-2295-P, 2005 WL 1133860, at *3 (N.D. Tex. May 10, 2005) (“The best
evidence of when petitioner deposited his writ in the prison mail system are the prison mail
logs.”).

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testimony under 28 U.S.C. § 1746. See Hart v. Hairston, 343 F.3d 762, 764 n.1
(5th Cir. 2003). The government has never discredited Coker’s statements.
       This Court, however, has not previously addressed whether a prisoner has
a duty to inquire about the status of state court proceedings which would affect
the AEDPA’s limitation period. Neither the magistrate judge nor the district
court made any findings of fact regarding Coker’s diligence in pursuing habeas
corpus relief; in fact, the magistrate judge’s report never addressed Coker’s
arguments for equitable tolling.5 Therefore, we remand for the district court to
conduct an evidentiary hearing regarding Coker’s claim that he diligently
pursued habeas corpus relief and meets the standard for equitable tolling of the
federal limitations filing period for his § 2254 petition.
                                   IV. CONCLUSION
       The judgment of the district court is REVERSED and REMANDED.




       5
         The preliminary order of the magistrate judge, dated September 26, 2003, instructed
the government to respond within sixty days regarding the date the TCCA denied Coker’s
application and whether Coker’s § 2254 petition should be denied as untimely. The order gave
Coker thirty days to reply after the government responded. Before the government responded,
Coker filed a supplemental memorandum, dated November 6, 2003, which stated that his state
application “has been pending continuously to this present day without a word, since October
30, 2000 before the Court of Criminal Appeals.” The government responded on November 20,
2003, but before Coker could reply within thirty days per the magistrate judge’s order, the
magistrate judge issued his report on November 24, 2003. Afterward, the district court judge
adopted the magistrate judge’s report before the ten-day period for objections expired.
Although the district court judge later vacated that order, giving Coker time to object, the
ultimate order by the district court denying Coker’s § 2254 petition as untimely did not address
his arguments for equitable tolling.

                                               9
