                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS               January 7, 2004
                        FOR THE FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                                                                        Clerk

                               No. 03-30586
                             Summary Calendar




PETER MERCADEL,

                                         Petitioner-Appellant,

versus

BURL CAIN, Warden,
Louisiana State Penitentiary,

                                         Respondent-Appellee.


                         --------------------
            Appeal from the United States District Court
                for the Eastern District of Louisiana
                           No. 02-CV-3619-K
                         --------------------



Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Peter Mercadel appeals the denial of his 28 U.S.C. § 2254

petition, wherein he attacked his 1976 conviction of second-degree

murder.     We previously ordered that the district court dismiss

without prejudice an earlier petition for failure to exhaust state

remedies.   See Mercadel v. Cain, 179 F.3d 271, 278 (5th Cir. 1999).



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                              No. 03-30586
                                   -2-

The district court held that the instant petition was time-barred

because the first federal petition did not toll the limitations

period   of   the   Antiterrorism   and   Effective   Death   Penalty   Act

("AEDPA") and that Mercadel was not entitled to equitable tolling.

     The district court correctly held that Mercadel originally had

until June 28, 1997, to file his § 2254 petition and that, although

the first petition was dismissed for failure to exhaust, it did not

toll AEDPA's clock.       See Duncan v. Walker, 533 U.S. 167, 181

(2001); Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999).           Mer-

cadel argues that the limitations period should have been equitably

tolled, given the unfairness of this result and given our prior or-

der to dismiss without prejudice.

     A decision with respect to equitable tolling is reviewed for

abuse of discretion.      Fisher v. Johnson, 174 F.3d 710, 713 (5th

Cir. 1999). Equitable tolling is appropriate only in "rare and ex-

ceptional circumstances."      Fisher v. Johnson, 174 F.3d 710, 713

(5th Cir. 1999)(internal quotation and citation omitted). The doc-

trine 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."         Coleman v. Johnson,

184 F.3d 398, 402 (5th Cir. 1999) (internal quotation and citation

omitted).

     From our review of the record, we conclude that the district

court correctly determined that even if equitable tolling applied

to the time that Mercadel's first § 2254 petition was pending, the
                           No. 03-30586
                                -3-

instant petition was still time-barred.   Further, although we pre-

viously held that a petition filed after Mercadel exhausted his

state remedies would not be successive, neither our prior decision

nor the district court's prior dismissal without prejudice made any

mention of the timeliness of a subsequent petition.     Therefore,

Mercadel was not actively deceived.   Compare United States v. Pat-

terson, 211 F.3d 927, 931-32 (5th Cir. 2000); cf. Cousin v. Len-

sing, 310 F.3d 843, 848 (5th Cir. 2002) (noting the absence of af-

firmative statements comparable to those in Patterson on which the

petitioner could have relied), cert. denied, 123 S. Ct. 2277

(2003). The district court did not abuse its discretion by denying

equitable tolling.

     AFFIRMED.
