                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 9, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-70016


                        MARLIN ENOS NELSON,

                                              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 Southern District of Texas
                         (H-03-CV-3742)


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

PER CURIAM:*

          Petitioner Marlin Enos Nelson, convicted in Texas state

court of capital murder and sentenced to death, seeks a certificate

of appealability (“COA”) to appeal the district court’s order

dismissing his petition for writ of habeas corpus.     He argues that

the equitable tolling doctrine should apply to his untimely federal

habeas petition because the district court failed to appoint

federal habeas counsel until after the statute of limitations for

filing his petition had already expired. Because jurists of reason

     *
      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this opinion should not be published and is not precedent except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.
would not find debatable the district court’s procedural ruling, we

DENY Nelson’s application for COA.

                            I.   BACKGROUND

            Nelson was convicted of the 1987 murder of James Randle

Howard and sentenced to death in August 1988.      The Texas Court of

Criminal Appeals affirmed his conviction and sentence on direct

appeal on November 25, 1992.     Nelson v. State, 848 S.W.2d 126 (Tex.

Crim. App. 1992).     Nelson’s conviction became final on October 4,

1993, when the U.S. Supreme Court denied Nelson’s petition for a

writ of certiorari.    Nelson v. Texas, 510 U.S. 830, 114 S. Ct. 100

(1993).

            The one-year statute of limitations for filing a writ of

habeas corpus in the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A), was tolled until the

appointment of state habeas counsel on January 19, 1998.1      Nelson

filed his state habeas petition 267 days later, on October 13,

1998.     After the Texas Court of Criminal Appeals denied state

habeas relief on September 11, 2002, ninety-eight days remained

within the limitations period.      Nelson’s petition was thus due on

or before December 19, 2002.




     1
      The Texas Attorney General’s office agreed to toll the time
from request until appointment of state habeas counsel in the
Texas Court of Criminal Appeals. See Cantu-Tzin v. Johnson, 162
F.3d 295, 298 (5th Cir. 1998); Pyles v. Morales, No. 396-CV-2838-
D (N.D. Tex. Dec 2, 1996).

                                    2
           Nelson   moved    for   the     appointment    of   federal   habeas

counsel on September 17, 2002.      However, the district court did not

appoint counsel until March 13, 2003, nearly six months after

Nelson had moved for the appointment and almost three months after

the expiration of AEDPA’s statute of limitations. Recognizing that

the limitations period had expired, on April 30, 2003, Nelson moved

for an extension of time until June 13, 2003, to file his federal

habeas petition.     His motion requested that the court equitably

toll the limitations period for the time Nelson was without federal

habeas counsel.     While that motion was pending, Nelson filed his

federal habeas petition on August 22, 2003, 162 days after the

appointment of counsel and 246 days after AEDPA’s limitations

period had expired.

           Because the petition had already been filed, the district

court   granted   Nelson’s    motion       for   an   extension   of   time   on

February 10, 2004, but declined to decide if the petition was

timely.   Responding to the State’s motion to dismiss, the district

court dismissed Nelson’s habeas petition as time barred and sua

sponte denied COA on March 31, 2005.             The district court denied

Nelson’s motion to alter or amend the judgment on March 31, 2006.

Nelson now appeals.

                             II.   DISCUSSION

           AEDPA requires Nelson to obtain a COA before he can

appeal to this court.        18 U.S.C. § 2253(c); Morris v. Dretke,



                                       3
379 F.3d 199, 203 (5th Cir. 2004).               To obtain a COA, Nelson must

make “a substantial showing of the denial of a constitutional

right.”    § 2253(c)(2).    Where, as here, the district court rejects

a habeas petition on procedural grounds, “a COA should issue when

the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural

ruling.”    Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595,

1604 (2000) (emphasis added); see also Morris, 379 F.3d at 204.

            It is undisputed that Nelson’s federal habeas petition

was untimely    filed.      However,       the    limitations    period   may    be

equitably tolled “in rare and exceptional circumstances.” Davis v.

Johnson, 158 F.3d 806, 811 (5th Cir. 1998).             “[E]xtraordinary cir-

cumstances exist where a petitioner is misled by an affirmative,

but incorrect, representation of a district court on which he

relies to his detriment.”         Cousin v. Lensing, 310 F.3d 843, 848

(5th Cir. 2002) (citing United States v. Patterson, 211 F.3d 927,

931-32 (5th Cir. 2000)).

            Nelson argues that equitable tolling applies to the time

period during which he lacked federal habeas counsel because the

district court did not make the appointment until six months after

he made his request and after the limitations period had already

expired.      However,     this   court     has     previously    held    that   a

defendant’s pro se status will not excuse an untimely habeas

                                       4
petition.   See, e.g., United States v. Wynn, 292 F.3d 226, 230 (5th

Cir. 2002) (citing United States v. Flores, 981 F.2d 231, 236 (5th

Cir. 1993)); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000);

see also, Lookingbill v. Cockrell, 293 F.3d 256, 264 n.13 (5th Cir.

2002). The district court was correct to conclude that Nelson knew

about the impending deadline and could have filed a pro se skeletal

petition before the limitations period expired.    See Lookingbill,

293 F.3d at 264.

            Nelson claims that this case presents more extraordinary

circumstances warranting equitable tolling than did Prieto v.

Quarterman, 456 F.3d 511 (5th Cir. 2006).         Prieto held that

equitable tolling was warranted where the district court misled the

prisoner by granting additional time to file his petition before

the limitations period had expired.     Id. at 515.   Nelson argues

that the district court’s extension of time in February 2004 misled

him into believing that his petition was due beyond the AEDPA

limitations period.     The district court’s order could not have

misled Nelson, because it granted the extension well after the

limitations period had already expired.     See Fierro v. Cockrell,

294 F.3d 674, 683 (5th Cir. 2002).       The court did not mislead

Nelson into filing his petition outside the limitations period.

            Nelson next contends that he was diligent in filing his

petition after counsel was appointed.   See Cousin, 310 F.3d at 849

(equitable tolling requires petitioner to “pursue habeas relief

diligently”).    The record, however, shows otherwise.   After state

                                  5
habeas    relief      was    denied,    ninety-eight    days   remained    in    the

limitations period.          Nelson’s counsel was aware of the limitations

period because he moved to extend the filing date to June 13, 2003,

a date within ninety-eight days from his appointment.                  Yet he then

waited until 162 days after the appointment to file Nelson’s

federal petition.           Cf. Prieto, 456 F.3d at 513.2        Therefore, even

if the district court had granted equitable tolling equivalent to

the time Nelson was without federal habeas counsel, his petition

would still have been untimely.3                Nelson’s complaint that he was

unable    to     prepare       the     petition    in   ninety-eight      days    is

unconvincing.         See Fierro, 294 F.3d at 684; Ott v. Johnson,

192   F.3d     510,   514     (5th   Cir.   1999).      Nelson   has    failed    to

demonstrate diligence in the preparation of his federal petition.

             Alternatively, the State urges us to deny COA because

Nelson made no attempt in his brief to show that “jurists of reason

would find it debatable whether the petition states a valid claim

of the denial of a constitutional right.”               Slack, 529 U.S. at 484,

120 S. Ct. at 1604; see also Nixon v. Epps, 405 F.3d 318, 323 (5th

      2
      Counsel contends that to do a thorough job of preparing the
petition, he tried to secure appropriate records and expert help,
all of which took time, and he faced impediments by the court and
the State. Nevertheless, counsel could also have filed a
skeletal petition and sought leave to amend later.
      3
      Nelson does not argue in his brief to this court, as he did
to the district court, that equitable tolling applies to the
five-month period between the appointment of counsel in March
2003 and the filing of the petition in August 2003. Accordingly,
any such argument is waived. See United States v. Pompa,
434 F.3d 800, 806 n.4 (5th Cir. 2005).

                                            6
Cir. 2005).     The Supreme Court rejected this approach in Slack,

where the petitioner focused his arguments on the district court’s

procedural ruling and made no attempt to show the denial of a

constitutional right.    See Slack, 529 U.S. at 485, 120 S. Ct. at

1604.   Like the Supreme Court in Slack, which noted that a ruling

against the petitioner on the procedural issue would end the case,

we decline to address the sufficiency of Nelson’s constitutional

issues because “there is also present some other ground upon which

the case may be disposed of.”         Id. (quoting Ashwander v. TVA,

297 U.S. 288, 347, 56 S. Ct. 466, 483 (1936) (Brandeis, J.,

concurring)).

                          III.   CONCLUSION

          Based on Lookingbill and this court’s settled authori-

ties, this case presents no “rare and exceptional circumstances”

that warrant equitable tolling, and jurists of reason would not

find the district court’s procedural ruling to be debatable.      We

therefore DENY Nelson’s application for COA to appeal the district

court’s refusal to grant equitable tolling.

          COA DENIED.




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