     Case: 12-20151       Document: 00512406772         Page: 1     Date Filed: 10/15/2013




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

                                                                            FILED
                                                                         October 15, 2013

                                       No. 12-20151                        Lyle W. Cayce
                                                                                Clerk

CURTIS LEE JONES

                                                  Petitioner - Appellant
v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-2588


Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       A Texas jury convicted petitioner-appellant Curtis Lee Jones of aggravated
assault with a deadly weapon and sentenced him to 30 years of incarceration.
Jones appeals the district court’s order dismissing his petition for habeas corpus
relief. We affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                              I.
       On November 3, 2006, Jones was convicted of aggravated assault with a
deadly weapon in Texas state court, and sentenced to 30 years incarceration.
On direct review, the Fourteenth Court of Appeals of Texas affirmed Jones’
conviction on August 14, 2007, and thereafter, on March 5, 2008, the Texas
Court of Criminal Appeals (“TCCA”) refused Jones’ petition for discretionary
review. Jones did not file a petition for a writ of certiorari in the Supreme Court.
Accordingly, Jones’ conviction became final for purposes of federal habeas corpus
review on June 3, 2008.1
       On December 8, 2008, Jones filed a pro se habeas application in the state
trial court. The state trial court then entered an order designating issues and
requiring the filing of attorney affidavits. The attorney affidavits were filed on
February 16, 2009 and September 11, 2009. Shortly thereafter, the state trial
court sent the application to the TCCA, which received it on October 15, 2009.
On that same day, Jones received a notice from the Clerk of the TCCA stating
that his application for habeas had been “received and presented to the Court.”2
       On September 29, 2010, the TCCA dismissed Jones’ habeas application as
non-compliant with Rule 73.1 of the Texas Rules of Appellate Procedure.3 Jones
explains that although he used the proper form for his state habeas application,
he failed to follow the instructions on the form for completing it. Instead of
making additional copies of page 10 to add additional grounds for relief as


       1
         28 U.S.C. § 2244(d)(1)(A); see Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013)
(noting that a conviction became final “the date on which the 90-day period in which to seek
review with the United States Supreme Court expired”).
       2
           Appellant’s Br. at 4.
       3
         Rule 73.1 provides that an “application for post conviction habeas corpus relief in a
felony case without a death penalty, under Code of Criminal Procedure article 11.07, must be
made in the form prescribed by the Court of Criminal Appeals[.]” Tex. Rules App. Proc., Rule
73.1(a).

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specified on the form, Jones explains that he instead inserted four pages into the
middle of the form. Jones received a notice from the Clerk of the TCCA notifying
him that his petition had been dismissed as non-compliant on that same day.4
      Approximately one month after the dismissal, on October 26,2010, Jones
filed an amended application that purported to correct any deficiencies. The
Harris County District Attorney’s Office then notified Jones that the amended
application could not be accepted because the application had already been
dismissed. Accordingly, on December 22, 2010, Jones filed a second state habeas
application. The TCCA then denied this second state habeas application without
written order on the trial court’s findings without a hearing on May 25, 2011.
      Jones filed the federal habeas petition at issue on July 11, 2011. In his
federal habeas petition, Jones seeks relief on a number of grounds, including: (i)
ineffective assistance of trial counsel; (ii) ineffective assistance of appellate
counsel; (iii) state trial court error in accepting a competency evaluation report,
admitting evidence of extraneous crimes and bad acts at trial, refusing to
instruct the jury on an insanity defense, and making an affirmative deadly
weapon finding; (iv) denial of due process when the state trial court failed to
consider a psychiatric examination report by two other psychiatric facilities; and,
(v) an unreasonable search and arrest.
      The magistrate judge, sua sponte, directed Jones to file a written
statement addressing whether the petition must be dismissed as untimely
pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and
whether equitable tolling should apply.         Jones filed the required written
statement, arguing that there should be statutory and equitable tolling, as the
state courts created an impediment to his filing a timely § 2254 application.
Specifically, Jones argued that contrary to Rule 73.2 of the Texas Rules of


      4
          Appellant’s Br. at 4.

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Appellate Procedure neither the state trial court nor the TCCA provided him
with notice of deficiency of his habeas application and they did not provide him
a reasonable opportunity to correct the deficiency. Jones also argued that he
was diligent in attempting to correct the deficiencies and that his mental illness,
as well as his lack of legal training, required a procedural safeguard.
      The district court, on de novo review, considered the timeliness of Jones’
petition and whether statutory or equitable tolling was warranted. The district
court found that Jones’ federal petition was untimely because Jones’ first state
habeas application was not “properly filed” as required for tolling under 28
U.S.C. § 2244(d)(2). Likewise, the district court explained that Jones’ second
habeas application did not toll the limitations period as it was filed after the
AEDPA deadline had already passed. And the district court held that Jones was
not entitled to statutory tolling under § 2244(d)(1)(B) because he failed to show
that the state courts’ delay in dismissing the first state habeas application was
so egregious as to constitute a violation of the United States Constitution.
Finally, the district court held that equitable tolling was not appropriate because
Jones had not been diligent in pursuing his rights and Jones’ pro se status did
not excuse the failure to file a timely § 2254 application. The district court then
dismissed the petition with prejudice.
      Jones filed a timely notice of appeal and the district court denied Jones’
request for a certificate of appealability. On October 2, 2012, this Court granted
a COA, finding that Jones’ claims of denial of effective assistance of counsel at
trial and appeal are facially valid constitutional claims, and that reasonable
jurists could debate whether equitable tolling should apply.




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                                                II.
       At the threshold, it is necessary to address the State’s argument that the
COA should not have issued.5 The State argues that the Supreme Court made
clear in Jimenez v. Quarterman6 that a COA may issue “only when the prisoner
shows both ‘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.’”7 The State therefore argues that the facially valid test
announced in Houser v. Dretke8 is no longer applicable in light of Jimenez.
       A review of the record makes clear that the COA properly issued. To begin
with, the footnote in Jimenez was a restatement of the requirement explicated
in Slack v. McDaniel, the same law on which this Court’s decision in Houser
relies.9 Second, this Court made clear in the COA that Jones’ federal habeas
petition stated a facially 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. Accordingly, the COA that issued comported
with the requirements as explicated in Slack and repeated in Jimenez.




       5
         See Gonzalez v. Thaler, 132 S.Ct. 641, 651 (2012) (“If a party timely raises [a] COA’s
failure to indicate a constitutional issue, the court of appeals panel must address the defect
by considering an amendment to the COA.”).
       6
           129 S.Ct. 681 (2009).
       7
           Id. at 684 n.3 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
       8
           395 F.3d 560, 562 (5th Cir. 2004).
       9
           129 S.Ct. at 684 n.3.

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                                              III.
       We review a district court’s denial of              equitable tolling for abuse of
discretion.10 AEDPA provides a one-year limitations period for filing habeas
applications.11 Here, the judgment against Jones became final on June 3, 2008,
when the 90-day period for filing a petition for a writ of certiorari in the
Supreme Court expired. Absent tolling, the statute of limitations for Jones to
file an application for federal post-conviction relief ran on June 3, 2009. The
district court held that statutory tolling was not available and that equitable
tolling was not warranted. As the COA was granted only on the issue of
equitable tolling, statutory tolling is not addressed.
       It is well-established that          “in rare and exceptional circumstances”
AEDPA’s one year statute of limitations “can be equitably tolled.”12 “Equity is
not intended for those who sleep on their rights,” and thus “[t]o establish his
entitlement to equitable tolling, a petitioner must show (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstances




       10
         Henderson v. Thaler, 626 F.3d 773, 779 (5th Cir. 2010) (citing Flores v. Quarterman,
467 F.3d 484, 485 (5th Cir. 2006)).
       11
          28 U.S.C. § 2244(d)(1); Henderson, 626 F.3d at 777. The one year period runs from
the latest of the following four dates:
       (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)(A)-(D).
       12
         Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Holland v. Florida, 130 S.Ct.
2549, 2562 (2010).

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                                          No. 12-20151

stood in his way and prevented timely filing.”13 The required diligence is
“reasonable diligence,” not “maximum feasible diligence.”14 In general, equitable
tolling is warranted only in “situations where the plaintiff is actively misled by
the defendant . . . or is prevented in some extraordinary way from asserting his
rights.”15 Accordingly, “neither excusable neglect nor ignorance of the law is
sufficient to justify equitable tolling.”16 Although only extraordinary cases
justify equitable tolling, “the statute of limitations must not be applied too
harshly” because “[d]ismissing a first § 2255 motion or habeas petition is a
particularly serious matter.”17
       Here, even assuming that Jones was reasonably diligent in pursuing his
rights, there was no extraordinary circumstance that stood in his way and
prevented timely filing. In essence, Jones argues that the state courts’ failure
to timely inform him that his habeas application was improperly filed misled
him into missing his federal deadline for filing a federal habeas petition and thus
is an extraordinary circumstance. In addition, in his brief in support of his
application for a COA, Jones argues that his mental illness should be taken into
account in deciding whether equitable tolling is appropriate.
       This is not an extraordinary circumstance warranting equitable tolling.
To begin with, the claimed extraordinary circumstance arises from Jones’ failure
to comply with the state procedural rules; if Jones followed the instructions on

       13
          Manning v. Epps, 688 F.3d 177, 184 (5th Cir. 2012) (internal quotation marks and
citations omitted); Holland, 130 S.Ct. at 2565.
       14
            Holland, 130 S.Ct. at 2562.
       15
          Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002) (internal quotation marks and
citations omitted).
       16
          Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002) (internal quotation marks and
citations omitted).
       17
         United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (internal quotation marks
and citation omitted).

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                                            No. 12-20151

the state application and submitted a properly completed habeas application,
then his AEDPA deadline would have been subject to statutory tolling.18 Indeed,
the claimed extraordinary circumstance here is substantially similar to that in
Larry v. Dretke.19 In Larry, the petitioner filed his first state habeas application
while his direct appeal to the United States Supreme Court was still pending.20
Over a year after petitioner filed his state habeas application, the state trial
court issued findings of fact and recommended denial his habeas petition on the
merits.21 The application was then forwarded to the TCCA, which promptly
dismissed his application because the direct appeal was still pending.22 The
petitioner then filed his federal habeas claim, which was dismissed as untimely
because petitioner’s first state habeas application was not properly filed and his
second state habeas application was filed after the AEDPA deadline had
passed.23 This Court affirmed the district court, explaining that statutory tolling
was not available because the original state habeas claim was not properly
filed.24 Further, this Court held that equitable tolling was not warranted
because it was the petitioner’s “own action of filing his state habeas application
before his judgment was final, rather than any action taken by the state court,
prevented him from asserting his rights.” This is so because if petitioner “had


       18
         See 28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period or limitation under this subsection.”
(emphasis added)).
       19
            361 F.3d 890 (5th Cir. 2004).
       20
            Id. at 892.
       21
            Id.
       22
            Id.
       23
            Id. at 892-93.
       24
            Id. at 894-96.

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                                         No. 12-20151

properly filed his state habeas application in accordance with Texas law the
federal statute of limitations would have tolled for the entire period his
application was pending before the state habeas courts.”25 Moreover, the record
indicated that the petitioner was aware of the relevant procedural rules.26
      Here, too, it was Jones’ failure to comply with the procedural rules for
filing a state habeas application that prevented him from asserting his rights.
If Jones had complied with the state procedural rules—printed on the state
habeas application—for the form of a habeas application, then the period of time
during which the state courts processed his application would have tolled
AEDPA’s statute of limitations.27 Like the petitioner in Larry, it was therefore
Jones’ failure to comply with state procedural rules, instead of any action by the
State or state courts, that caused Jones to miss the AEDPA deadline. Moreover,
the instruction that Jones violated was on the state provided habeas application,
and Jones’s briefing makes clear that he had read the relevant instructions.
Although this Court was “particularly unsympathetic” in Larry because the
petitioner was a former lawyer, the same principle applies here: Jones’s own
action of filing an improperly completed state habeas application, “rather than
any action taken by the state court, prevented him from asserting his rights.”28
Further, Jones waited six months after his conviction became final to file his
first state habeas application; one month before filing his second application; and
more than two months before filing his federal application. We therefore cannot
say that the district court abused its discretion by finding that Jones failed to




      25
           Id. at 897.
      26
           Id.
      27
           See 28 U.S.C. § 2244(d)(2).
      28
           Larry, 361 F.3d at 897.

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                                            No. 12-20151

diligently pursue his rights and that, in any event, he was not “prevented in
some extraordinary way from asserting his rights.”29
       Second, the present case is readily distinguishable from the state created
delay found to warrant equitable tolling in Hardy v. Quarterman.30 There,
nearly a full year passed between the TCCA rendering its decision denying the
habeas application and its notification of the petitioner, despite attempts by
petitioner to inquire as to the status of the application.31 In contrast, here, the
delay at issue is “not in a ministerial act by a clerk, but in a judge’s ruling,
however ‘routine’ or ‘simple’ one might think the ruling is or should be.”32
Indeed, the Clerk of the TCCA promptly informed Jones of the dismissal of his
habeas application. Moreover, in Wickware we concluded that a nine month
delay in judicial ruling was not an unconstitutionally unacceptable delay.33
Although here the delay in ruling was substantially longer, since Jones had only
six months remaining on the AEDPA clock by the time he filed his state habeas
application, a judicial ruling would have had to be made in substantially less
time for Jones to address his procedural error than we found to be a
constitutionally acceptable delay in Wickware.
       Finally, Jones’ argument with respect to his mental illness fails. Although
mental illness may warrant equitable tolling, a petitioner (i) must make a
threshold showing of incompetence and (ii) must show that this incompetence




       29
        See id.; Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir.2001); Coleman v. Johnson, 184
F.3d 398, 403 (5th Cir.1999).
       30
            577 F.3d 596 (5th Cir. 2009).
       31
            Id. at 597-98.
       32
            Wickware v. Thaler, 404 F.App’x 856, 862 (5th Cir. 2010)(per curiam)(unpublished).
       33
            Id.

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affected his ability to file a timely habeas petitioner.34 Here, Jones has not made
a threshold showing of incompetence and more importantly, it is clear that there
is no causal connection between Jones’ mental illness and his failure to file a
timely federal habeas petition. And the record makes clear that regardless of
any mental illness, Jones has pursued, without assistance of counsel, both state
and federal habeas relief.
                                               IV.
       For the foregoing reasons, we AFFIRM.




       34
          See, e.g., Riva v. Ficco, 615 F.3d 35, 40 (1st Cir. 2010) (“There must be some causal
link between a petitioner's mental illness and his ability seasonably to file for habeas relief.”);
Bolarinwa v. Williams, 593 F.3d 226, 232 (2d Cir. 2010) (“[A] habeas petitioner must
demonstrate that her particular disability constituted an ‘extraordinary circumstance’ severely
impairing her ability to comply with the filing deadline, despite her diligent efforts to do so.”);
Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009)(“[T]he alleged mental impairment must
have affected the petitioner's ability to file a timely habeas petition.”); McSwain v. Davis, 287
F.App’x 450, 456 (6th Cir. 2008) (same); Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003)
(“Where a habeas petitioner's mental incompetence in fact caused him to fail to meet the
AEDPA filing deadline, his delay was caused by an ‘extraordinary circumstance beyond [his]
control,’ and the deadline should be equitably tolled.”).

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