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

                                                                            FILED
                                                                          August 7, 2008

                                       No. 06-31177                   Charles R. Fulbruge III
                                                                              Clerk

ANDRE L. BAKER,

                                                  Petitioner–Appellant,
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent–Appellee.



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:06-cv-00387


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       At issue is whether this court should equitably toll the Antiterrorism and
Effective Death Penalty Act’s (AEDPA’s) one-year limitations period under 28
U.S.C. § 2244(d)(1) because petitioner Andre Baker did not receive notice that
his state habeas application had been denied. We conclude equitable tolling is
inappropriate.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-31177

                                            I
      Baker was charged with and pleaded guilty to three counts of attempted
second-degree murder. He was sentenced to thirty years’ imprisonment. In
September 2002, Baker filed an application for state post-conviction relief and
claimed he was denied effective assistance of counsel. The 19th Judicial District
of Louisiana denied relief in December 2002. Baker claims the trial court failed
to advise him of its decision. After some twenty months, he inquired into his
petition’s status and learned the trial court had denied relief. Baker points to
a letter postmarked in late October 2004 finally advising him of the district
court’s order from December 2002. Baker then sought relief from the Louisiana
First Circuit Court of Appeals in December 2004. That court denied relief in
February 2005. Baker sought relief from the Louisiana Supreme Court, which
denied relief in February 2006.
      After exhausting state post-conviction relief, Baker filed a writ of habeas
corpus in federal district court in June 2006. The State of Louisiana argued that
Baker’s petition was time-barred under AEDPA. The federal magistrate judge
recommended a ruling that Baker’s application was untimely and that equitable
tolling was inappropriate. The district court agreed and denied Baker’s request
for a Certificate of Appealability (COA). This court granted a COA to determine
whether the one-year limitations period should be equitably tolled.
                                           II
      We review de novo a district court’s denial of a habeas petition on
procedural grounds; however, we review the denial of equitable tolling only for
an abuse of discretion.1




      1
        Howland v. Quarterman, 507 F.3d 840, 843 (5th Cir. 2007), cert. denied, 128 S. Ct.
2873 (2008).

                                            2
                                           No. 06-31177

                                                A
       The State challenges whether equitable tolling is available, requesting
that we “should consider the ultimate question,” which it identifies as whether
equitable tolling is applicable in cases arising under § 2244(d). The State cites
Pace v. DiGuglielmo, in which the Supreme Court noted: “[w]e have never
squarely addressed” the question of equitable tolling of the AEDPA’s limitations
period.2 The Supreme Court similarly commented in Lawrence v. Florida.3 In
both Pace and Lawrence, the Supreme Court assumed, without deciding, that
equitable tolling was available since neither party argued otherwise. The State
contends that “unlike the respondents in Pace and Lawrence, in this instance the
State maintains that Congress’[s] strict one-year limitation period should not
permit any equitable exceptions.” Moreover, the State “urge[s] this Court to
reconsider” our conclusion—shared by numerous other circuits4—that AEDPA’s
limitation is not jurisdictional.5 The State contends that equitable tolling is
inapplicable to habeas claims under AEDPA.
       In Johnson v. Quarterman, we noted that the Supreme Court had not
decided whether a court could equitably toll AEDPA limitations.6 Nonetheless,

       2
           544 U.S. 408, 418 n.8 (2005).
       3
         127 S. Ct. 1079, 1085 (2007) (“Lawrence also argues that equitable tolling applies to
his otherwise untimely claims. We have not decided whether § 2244(d) allows for equitable
tolling. Because the parties agree that equitable tolling is available, we assume without
deciding that it is.” (citation omitted)).
       4
         Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001); Harris v. Hutchinson,
209 F.3d 325, 328-29 (4th Cir. 2000); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000);
Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999); Sandvik v. United States, 177 F.3d 1269,
1271 (11th Cir. 1999); Moore v. United States, 173 F.3d 1131, 1134 (8th Cir. 1999); Miller v.
N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998); Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998); Calderon v. U.S. Dist. Court for the Cent. Dist. of Cal., 128 F.3d 1283, 1289
(9th Cir. 1997), overruled on other grounds by 163 F.3d 530 (9th Cir. 1998) (en banc).
       5
           Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
       6
           483 F.3d 278, 286 (5th Cir. 2007), cert. denied, 128 S. Ct. 709 (2007).

                                                3
                                         No. 06-31177

our court has equitably tolled AEDPA limitations “‘in rare and exceptional
circumstances’”7 and has concluded that AEDPA’s limitations are not
jurisdictional,8 a holding we have recently reaffirmed.9 Moreover, this court has
explicitly rejected the State’s argument that the Supreme Court’s opinion in
Bowles v. Russell should change our analysis.10 “The holding of a panel of this
court must comport with prior panel decisions, until changed by this court acting
en banc, or unless the Supreme Court either clearly holds or teaches to the
contrary.”11 Since there is no such authoritative precedent, equitable tolling
remains available in this circuit as a general matter, albeit “in rare and
exceptional circumstances.”12
                                                B
       Baker argues that the state trial court’s failure to advise him of its
December 2002 decision until his inquiry approximately twenty months
thereafter is grounds for equitable tolling. A petitioner may benefit from
equitable tolling if the petitioner shows (1) diligent pursuit of his rights and
(2) “‘that some extraordinary circumstance stood in his way.’”13 Equitable tolling


       7
           Id. (quoting Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002)).
       8
           Davis, 158 F.3d at 811.
       9
        See, e.g., United States v. Petty, 530 F.3d 361, 364 (5th Cir. 2008) (“This court has
concluded that the one-year limitations period of the [AEDPA] . . . is not jurisdictional and,
therefore, is subject to equitable tolling.” (citation omitted)).
       10
          Id. at 364 n.5 (“The Supreme Court’s recent holding in Bowles v. Russell . . . is not
applicable here. In Bowles, the Court held that courts were prohibited from creating equitable
exceptions to statutory jurisdictional requirements, such as the time for filing a notice of
appeal. As noted above, this circuit does not view the AEDPA limitations period as a
jurisdictional bar, but rather as a statute of limitations that functions as an affirmative
defense.” (citations omitted)).
       11
            Ketchum v. Gulf Oil Corp., 798 F.2d 159, 162 (5th Cir. 1986).
       12
            Johnson, 483 F.3d at 286.
       13
            Id. (quoting Lawrence v. Florida, 127 S. Ct. 1001, 1085 (2007)).

                                                 4
                                         No. 06-31177

is available only “‘when strict application of the statute of limitations would be
inequitable.’”14 Inequitable results occur “‘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.’”15 “Extraordinary
circumstances preventing timely filing must be just that, extraordinary.”16
       A survey of cases is instructive as to this court’s definition of
“extraordinary circumstances.” A petitioner who receives equitable tolling
generally has missed his deadline because of “external factors beyond his
control.”17 For instance, in Prieto v. Quarterman, Prieto’s AEDPA limitations
period was set to expire in late April 2002.18 In mid-April, he moved for an
extension of the deadline, which the district court granted, provided the petition
was filed “no later than September 6, 2002,” long after the AEDPA limitations
period’s expiry.19 Relying on the district court’s order, Prieto filed his petition
in August 2002, outside the limitations period but within the time imparted by
the district court under the extension. Still, the district court dismissed his
petition as untimely. We equitably tolled Prieto’s deadline since he “relied on
the district court’s order in good faith and to his detriment.”20 Like Prieto,
petitioners who are misled by a district court’s actions benefit from equitable



       14
         Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002) (quoting Davis v. Johnson, 158
F.3d 806, 810-11 (5th Cir. 1998)).
       15
            Id. (quoting Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999)).
       16
        Howland v. Quarterman, 507 F.3d 840, 845 (5th Cir. 2007), cert. denied, 128 S. Ct.
2873 (2008).
       17
            In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006).
       18
            456 F.3d 511, 514 (5th Cir. 2006).
       19
            Id. at 514-15.
       20
            Id. at 515.

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                                          No. 06-31177

tolling.21        But either blameworthiness or “delays of the petitioner’s own
making”22 usually render inapplicable equitable tolling. Thus, ignorance of the
law,    “however        understandable,”            rarely   qualifies   as   extraordinary
circumstances,23        and     neither      does     counsel’s   inability   to   meet     the
deadline.24 Phillips v. Donnelly suggests that a purported delay in receiving
notice of denial might constitute an “exceptional circumstance.”25 In that case,
the petitioner argued that approximately four months passed between the actual
denial of his state habeas petition and the day he received notice.26 We noted
that, assuming petitioner’s factual claim as to the delay was correct, he
otherwise pursued his petition with “diligence and alacrity”—filing his out-of-
time appeal three days after he allegedly received notice and filing his federal
petition less than one month after denial of the out-of-time appeal.27 We
concluded that a “delay in receiving notification could qualify for equitable
tolling.”28       Ultimately, we vacated and remanded to the district court to




       21
         See, e.g., United States v. Patterson, 211 F.3d 927, 931-32 (5th Cir. 2000) (applying
equitable tolling after district court granted pro se prisoner’s request to dismiss petition
without prejudice so that prisoner could retain counsel and refile petition later).
       22
            In re Wilson, 442 F.3d at 875.
       23
            Flores v. Quarterman, 467 F.3d 484, 486 (5th Cir. 2006).
       24
         Johnson v. Quarterman, 483 F.3d 278, 285 (5th Cir. 2007), cert. denied, 128 S. Ct. 709
(2007) (denying equitable tolling for petitioner after his counsel waited until 7:30 p.m. on the
due date only to have his computer fail).
       25
            216 F.3d 508, 511 (5th Cir. 2000).
       26
            Id.
       27
            Id.
       28
            Id.

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                                          No. 06-31177

determine whether petitioner could in fact show that his notice was delayed four
months.29
      However, the district court’s delay does not automatically merit equitable
tolling if the petitioner is not otherwise diligent. As we have noted in other
opinions, our decision in Phillips that equitable tolling was applicable, assuming
the factual contention was resolved in petitioner’s favor, was due both to the
existence of circumstances beyond petitioner’s control and to petitioner’s quick
and diligent actions.30 In Melancon v. Kaylo, for instance, petitioner argued that
his application for a supervisory writ to the Court of Appeals was not timely
because the Louisiana trial court incorrectly set the return date on the
application.31 We noted that “[t]he district court’s error in setting the return
date of the application might warrant equitable tolling.”32 We further noted that
petitioner “seem[ed] to have filed his untimely application for a supervisory writ
in accordance with the [incorrect date], set by the Louisiana trial court.”33
Nonetheless, we concluded that the petitioner failed to act with diligence after
he waited over four months to file his federal habeas petition following the
Louisiana Supreme Court’s denial of petitioner’s requested supervisory writ.34
      The State argues we should deny equitable tolling because Baker waited
twenty months before inquiring into whether the state district court had ruled
on his petition for post-conviction relief; this delay, argues the State, shows a

      29
           Id.
      30
        See Hayes v. Wilson, No. 06-60867, 2008 WL 638063, at *4 (5th Cir. March 6, 2008)
(comparing Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) with Phillips, 216 F.3d at
511).
      31
           259 F.3d 401, 407 (5th Cir. 2001).
      32
           Id. at 408 (emphasis added).
      33
           Id.
      34
           Id.

                                                7
                                  No. 06-31177

lack of diligence. In light of Phillips, such a holding presents thornier questions
than the alternative ground discussed below, particularly since Baker has cited
several Louisiana opinions in which the district court deliberated for
approximately twenty months or longer before ruling on post-conviction relief
and has presented prison mail records and a postmarked envelope showing that
the only letter he received from the Louisiana district court within the applicable
timeframe was dated approximately two years after it denied his petition. We
leave for another day the issue of whether a prisoner in Baker’s position
improperly waited because we affirm on other grounds.
      Putting aside the question of Baker’s twenty-month wait, we see acts
similar to that in Melancon, in which we denied equitable tolling under similar
circumstances. As the State noted below, Louisiana Uniform Court of Appeal
Rule 4-3 grants no more than thirty days for a prisoner to seek a supervisory
writ from an intermediate appellate court after the district court’s ruling.
Obviously, Baker’s December 17, 2004 application to the state intermediate
court was more than thirty days after the trial court’s ruling on December 12,
2002. But more importantly, even if we gave Baker the benefit of the doubt, and
found that he did not receive notice of the district court’s ruling until October
2004, he made no effort to comply with the thirty-day window under Rule 4-3.
We note that we do not construe Rule 4-3’s time limit as starting when the
prisoner receives notice. We merely note that Baker’s delay by not filing his out-
of-time appeal as soon as possible, or at least within the thirty days he would
have been given had the delay not occurred, shows a lack of diligence even if we
were to determine that the twenty-month delay was an extraordinary
circumstance beyond Baker’s control. Moreover, like the petitioner in Melancon,
Baker waited approximately four months to file a federal petition after the
Louisiana Supreme Court denied relief. Baker has not exhibited the diligence



                                        8
                                  No. 06-31177

of the petitioner in Phillips that this court found deserving of equitable tolling
in light of the exceptional circumstances.
                                 *      *      *
      Since Baker has failed to prove that he acted with “diligence and alacrity”
in pursuing his petition, we find no error in the district court’s refusal to
equitably toll the AEDPA one-year limitations. We therefore AFFIRM.




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