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

                                                                            FILED
                                                                           March 6, 2008

                                       No. 06-60867                   Charles R. Fulbruge III
                                                                              Clerk

DAVID LEE HAYES

                                                  Petitioner - Appellant
v.

MICHAEL WILSON

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                No. 2:03-CV-323


Before KING, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
       After being convicted of felony escape and sentenced to five years’
imprisonment, petitioner-appellant David Lee Hayes filed a federal habeas
petition, which was subsequently dismissed as time-barred. The district court
granted Hayes a certificate of appealability on one issue: “whether the instant
petition for a writ of habeas corpus was rendered timely due to equitable tolling
triggered by the state court’s repeatedly misfiling the petitioner’s appellate and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-60867

state post-conviction pleadings.” We answer in the negative and AFFIRM the
judgment of the district court.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Petitioner-appellant David Lee Hayes was convicted by a jury of statutory
rape and was sentenced in February 2000 to life imprisonment without the
possibility of parole as a habitual offender. Hayes was subsequently convicted
in a separate trial of felony escape and was sentenced on March 28, 2000, to five
years of imprisonment, with the sentence to run consecutively to his
previously-imposed sentence.
      Hayes’s rape conviction was affirmed by the Mississippi Court of Appeals
on March 27, 2001, Hayes v. State, 803 So.2d 473, 479 (Miss. Ct. App. 2001), and
his conviction for felony escape was affirmed on December 11, 2001, Hayes v.
State, 801 So.2d 806, 812 (Miss. Ct. App. 2001). Hayes did not seek certiorari or
discretionary review from the Mississippi Supreme Court or petition for
certiorari in the United States Supreme Court. However, Hayes sought state
post-conviction relief for both convictions.
      On April 27, 2001, Hayes filed his first state application for post-conviction
relief challenging his rape conviction. That application was withdrawn, but
Hayes re-filed the application and, in July 2001, moved to amend the application
in order to raise two additional issues related to the rape conviction.
      On January 28, 2002, Hayes filed the application for post-conviction relief
that is central to the instant appeal. Although Hayes identified the conviction
at issue as his escape conviction, the facts presented in support of the motion
related to his rape conviction. On the same date, Hayes also filed a “Brief in
Support of Motion for Post-Conviction Collateral Relief.” In it, Hayes argued
that he could not be properly convicted of escape because his arrest on the rape
charge was unlawful, and he was therefore not lawfully detained at the time of
his escape. Hayes placed the trial court number for the escape case as the cause

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number on his “Brief in Support,” but the clerk’s office put the appellate court
case number that corresponded to his earlier-filed post-conviction application for
the rape conviction on the brief and filed it under that case number. Hayes’s
January 28, 2002, application and the “Brief in Support” were both misfiled
under the cause number assigned to the rape conviction case, 2001-CV-0676.
      The Mississippi Supreme Court denied Hayes’s January 28, 2002
application on March 18, 2002. In July 2002, Hayes moved to supplement his
“Brief in Support,” but his request was dismissed as moot on August 12, 2002,
in light of the March order. On August 23, 2002, Hayes submitted a letter to the
Mississippi Supreme Court in which he asserted that the court incorrectly
dismissed his July 2002 request to supplement his brief. Hayes contended that
the application and “Brief in Support” challenged his escape conviction, not the
rape conviction. The Mississippi Supreme Court construed Hayes’s letter as a
motion for rehearing, which it denied on October 9, 2002.
      In September 2002, Hayes filed a 28 U.S.C. § 2254 petition challenging his
escape conviction, which although initially deemed to be successive, was later
reinstated.
      On March 12, 2003, in an “Order Affording Petitioner an Opportunity to
Amend,” the magistrate judge (the “MJ”) found that Hayes had failed to exhaust
his state remedies on three of the five claims raised in the § 2254 petition. The
MJ further informed Hayes that § 2244(d)’s one-year statute of limitations for
seeking federal habeas relief had expired, and that the pendency of the § 2254
petition would not toll the limitations provisions under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). See Duncan v. Walker, 533 U.S. 167,
181–82 (2001). Although the MJ was under no obligation to assist Hayes in
maintaining a viable federal habeas petition, see Pliler v. Ford, 542 U.S. 225, 233
(2004), the MJ warned Hayes that if the case were dismissed in its entirety at
that time, he would be barred access to any federal court following completion

                                        3
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of state court post-conviction proceedings, as the next federal petition would be
untimely. As such, the MJ granted Hayes until April 4, 2003 to amend his
petition by removing the unexhausted claims and proceed to the merits on the
remaining claims. Rather than amending his petition, Hayes moved to dismiss
the petition so that he could exhaust his state court remedies. The district court
granted the motion and dismissed the petition on March 31, 2003.
      On April 16, 2003, Hayes filed another state application for post-conviction
relief challenging his escape conviction. On August 14, 2003, the Mississippi
Supreme Court denied the application, finding that it had “previously denied a
similar application and that the present application is barred pursuant to MISS.
CODE ANN. § 99-39-27(9).” The court denied rehearing on September 9, 2003.
      On September 22, 2003, Hayes filed the instant § 2254 petition challenging
his escape conviction. In it, he asserted the following grounds for relief: (1) the
testimony of one of the officers was based on hearsay; (2) the trial court erred in
denying his motion for a directed verdict; and (3) his counsel was ineffective for
failing to challenge the legality of his rape arrest and failing to obtain a
transcript of the grand jury proceedings.
      On January 23, 2004, the MJ recommended that Hayes’s § 2254 petition
be dismissed as untimely pursuant to § 2244(d). The MJ found that Hayes’s
April 16, 2003, state application was filed after the expiration of the limitations
period and consequently did not toll the limitations period under § 2244(d)(2).
The MJ also concluded that there were no rare and exceptional circumstances
to justify equitable tolling. Hayes filed objections to the MJ’s report and
recommendation, asserting that he was misled by the state court’s errors into
believing that the limitations period may have been tolled, so he should be
entitled to equitable tolling.
      After conducting a de novo review, the district court overruled Hayes’s
objections, adopted the MJ’s report and recommendations, and dismissed


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Hayes’s petition as untimely. Hayes filed a motion for reconsideration in which
he argued that he “actively and consistently attempted to get his claims before
the Mississippi Supreme Court and [f]ederal [c]ourt within the allotted time, in
order to preserve his claims for habeas relief.” The district court construed the
motion as a Rule 60(b) motion, which it denied. The district court also denied
Hayes a certificate of appealability (“COA”) and denied him leave to proceed in
forma pauperis.
       Subsequently, we granted Hayes a COA and vacated and remanded,
specifically noting that it could not be ascertained from the record whether
Hayes’s January 2002 state post-conviction application challenged the rape
conviction or the escape conviction, but that the Mississippi Supreme Court
nonetheless dismissed Hayes’s 2003 application as successive. We reasoned that
if the January 2002 state application was in fact a challenge to the escape
conviction, Hayes would be entitled to tolling for the time the application was
pending. We granted a COA on the following issues: (1) whether Hayes’s 2002
post-conviction application was interpreted by the state courts as a challenge to
his escape conviction; (2) whether Hayes was entitled to tolling for any time that
such an application was pending; and (3) whether Hayes’s § 2254 petition has
been rendered timely by any such tolling.
       On remand, the district court found that Hayes’s January 2002 state
application had been construed by the state courts as a challenge to his rape
conviction and did not toll the § 2244 limitations period applicable to Hayes’s
escape conviction. The district court further concluded that because Hayes’s
escape conviction became final on December 26, 2001, Hayes had until December
26, 2002 to file his § 2254 petition, absent tolling. Thus Hayes’s § 2254 petition,
which was not filed until September 22, 2003, was untimely.1 Additionally, the


       1
       The district court further noted that even if the limitations period were tolled from
January 28, 2002 (the date Hayes filed the application and “Brief in Support”), until October

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district court noted that even if equitable tolling applied, Hayes failed to
diligently pursue habeas relief by waiting six months from the date the state
supreme court denied his motion for rehearing before filing a state
post-conviction application for relief from his escape conviction.
       Hayes filed a timely notice of appeal and moved for a COA. The district
court granted Hayes a COA on one issue: “whether the instant petition for a writ
of habeas corpus was rendered timely due to equitable tolling triggered by the
state court’s repeatedly misfiling the petitioner’s appellate and state
post-conviction pleadings.”
                                   II. DISCUSSION
       The decision of a district court to deny a habeas application on procedural
grounds is reviewed de novo. Larry v. Dretke, 361 F.3d 890, 893 (5th Cir. 2004).
However, we review a district court’s decision to deny equitable tolling for abuse
of discretion, id. at 897, and its factual findings for clear error. Alexander v.
Cockrell, 294 F.3d 626, 628 (5th Cir. 2002).
       AEDPA establishes a one-year statute of limitations for filing a federal
habeas corpus petition. 28 U.S.C. § 2244(d)(1). A habeas petitioner has one year
from the date that his conviction becomes final in which to file. § 2244(d)(1)(A);
see also Roberts v. Cockrell, 319 F.3d 690, 694–95 (5th Cir. 2003).                     The
limitations period is tolled, however, while a “properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending.” § 2244(d)(2).



9, 2002 (the date the Mississippi Supreme Court denied Hayes’s motion for rehearing), Hayes’s
§ 2254 petition would have still been untimely because the limitations period would have been
tolled for 257 days and would have expired on September 9, 2003, and he filed on September
22, 2003. However, the district court failed to recognize that, under that scenario, Hayes’s
April 16, 2003 state application for post-conviction relief challenging his escape conviction
would have been timely, further tolling the limitations period under AEDPA from April 16 to
the state court judgment on August 14, 2003. As such, the instant petition would not be time-
barred.

                                             6
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      Additionally, the one-year statute of limitations is subject to equitable
tolling, but only in “rare and exceptional circumstances.” Felder v. Johnson, 204
F.3d 168, 170–71 (5th Cir. 2000) (internal quotation marks and citation omitted).
The doctrine of equitable tolling “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.”            Id. at 171 (internal
quotation marks and citation omitted). “A petitioner’s failure to satisfy the
statute of limitations must result from external factors beyond his control;
delays of the petitioner’s own making do not qualify.” In re Wilson, 442 F.3d 872,
875 (5th Cir. 2006). As the Supreme Court recently stated, “To be entitled to
equitable tolling, [the petitioner] must show ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way’
and prevented timely filing.” Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner has the
burden of establishing that he is entitled to equitable tolling. See Alexander, 294
F.3d at 629. We “must consider the individual facts and circumstances of each
case in determining whether equitable tolling is appropriate.” Id.
      Hayes contends that he is entitled to equitable tolling because he was
misled by the state court when it erroneously filed his motion and supporting
briefs for post-conviction relief from his escape conviction in the file for his post-
conviction relief for his rape case.
      The State concedes that there clearly was confusion in the state court and
agrees with the district court’s conclusion that the state’s “‘repeated
mischaracterizations’ of Hayes’s pleadings prevented those pleadings from being
filed as Hayes intended.” However, the State attributes some of the confusion
to the overlapping arguments raised by Hayes in his state applications. Further,
the State contends that even if the confusion warranted equitable tolling, the
district court did not abuse its discretion in holding that Hayes is not entitled to

                                          7
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equitable tolling because Hayes did not diligently pursue his rights by waiting
six months from the date that the state court denied him a rehearing to file his
state application challenging his escape conviction.
      We have previously denied equitable tolling when a state clerk mistakenly
filed the petitioner’s two separate applications for state habeas relief together,
overlooking one claim, and did not correct the error until the petitioner contacted
the clerk about the error one month later. Coleman v. Johnson, 184 F.3d 398,
402–03 (5th Cir. 1999). In that case, the petitioner waited six months from the
time his state application was denied before he filed his federal application. Id.
We held that equitable tolling did not apply because the petitioner did not
explain his six month delay and that delay, combined with the clerk’s error, did
not constitute extraordinary circumstances sufficient to find the district court
abused its discretion in denying equitable tolling. Id. at 403. Similarly, in
Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001), we denied equitable tolling
because the petitioner waited just over four months between learning that his
state petition had been denied and filing his federal petition and thus failed to
show extraordinary circumstances because he did not diligently pursue his
rights. In contrast, the petitioner in Phillips v. Donnelley, 216 F.3d 508, 511 (5th
Cir.), modified on reh’g, 223 F.3d 797 (2000), moved for an out-of-time appeal
within three days of allegedly receiving notice of the denial of his state court
application and had filed his federal habeas petition within one month of the
denial of the out-of-time appeal. We determined that Phillips was entitled to
equitable tolling because he had acted “with diligence and alacrity” in pursuing
relief. Id.
      In this case, similar to the petitioners in Coleman and Melancon, Hayes
waited six months from the date the state court denied him a rehearing before
filing his second state application challenging his escape conviction. In light of
this delay, the district court concluded Hayes had not diligently pursued post-

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conviction relief for his escape conviction. However, the district court failed to
consider that Hayes, in contradistinction to the petitioners in Coleman and
Melancon, continued to pursue relief in one forum or another after he discovered
on August 12, 2002, that the state court had misfiled his first application
challenging his escape conviction.2 Specifically, that same month, Hayes filed
a letter in the state court pointing out the court’s error and requesting
reconsideration, and then in September, before the state court issued its October
2002 response, Hayes filed his first § 2254 petition in federal court. Thus, at the
time the Mississippi Supreme Court denied Hayes’s letter requesting
reconsideration, construed as a motion for rehearing, the district court had not
yet issued an order disposing of Hayes’s § 2254 petition. The district court did
not issue a ruling on the § 2254 petition until March 2003, and Hayes filed his
second state application challenging the escape conviction the following month,
in April 2003, which, according to AEDPA’s statute of limitations, was out-of-
time. On August 14, 2003, the state supreme court denied that application as
successive.3 Hayes filed the instant § 2254 petition about one month later, on
September 22, 2003.
       Even though Hayes did not sit on his rights, as he was continuously
seeking relief in federal court after learning of the state court’s error, we
conclude that the district court did not abuse its discretion in denying equitable
tolling. When Hayes first received knowledge of the state court’s errors, he


       2
         Hayes conceded in his application for COA that he was on notice that his first post-
conviction motion, dated January 28, 2002, was not being reviewed by the state court when
said court denied his request to supplement his brief as moot on August 12, 2002.
       3
          Even though this new application stated that it was a challenge to the escape
conviction, Hayes attached substantial documentation from his previous post-conviction case
in state court on the rape conviction, thereby creating confusion as to which conviction was
actually being challenged. This confusion appears to be the reason the petition was dismissed
as successive. However, the case number shows that the conviction at issue was the escape
conviction.

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should have attempted to expediently file a second application for relief from his
escape conviction in state court. Instead, Hayes waited over six months to file
another state application while he pursued his federal habeas petition on
unexhausted claims.           It is well recognized that neither a petitioner’s
unfamiliarity with the legal process nor his ignorance of the exhaustion
requirement merits equitable tolling. See Turner v. Johnson, 177 F.3d 390, 391
(5th Cir. 1999). Thus, unless the state court’s errors actively misled Hayes to
believe: 1) that his claims in the application challenging the escape conviction
were exhausted; or 2) that filing a federal habeas petition would toll § 2244(d)’s
one-year statute of limitations, either of which would warrant filing a federal
habeas petition at that juncture rather than a subsequent state application for
relief, we cannot say that Hayes was actively misled or prevented in some
extraordinary way from asserting his rights.4
       Based on the information in the record, we find that Hayes cannot fault
the state court for his choice to file the federal habeas petition. Specifically,
Hayes admitted in his application for COA that by August 12, 2002,5 he was on
notice that his first motion for post-conviction relief challenging his escape
conviction was not being reviewed. Nonetheless, Hayes filed his first federal
habeas petition the next month, before the state court denied his motion for
rehearing in October. Thus, in deciding to pursue the § 2254 petition, Hayes
could not have relied upon any affirmative representations from the state court
that his claims challenging the escape conviction had been exhausted.6


       4
         Hayes had over four months from the time he knew that the court was not reviewing
his January 28 motion for post-conviction relief to re-file in state court and toll AEDPA’s
limitations period during the pendency of the state action.
       5
       August 12, 2002, was the date that the state court denied Hayes’s request to
supplement his brief as moot.
       6
         One could argue that Hayes filed this early federal habeas petition as a “protective”
petition, see Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), and that the state court’s October

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Furthermore, none of the state court’s rulings indicated whether a federal
habeas petition would toll, statutorily or equitably, AEDPA’s one-year
limitations period. As such, Hayes’s early pursuit of his federal habeas petition
was likely a product of his own unfamiliarity with the law and does not
constitute extraordinary circumstances sufficient to find the district court
abused its discretion in denying equitable tolling. Cf. United States v. Patterson,
211 F.3d 927, 931 (5th Cir. 2000) (finding that where district court was under
mistaken impression that the defendant would not be time-barred from filing
another § 2255 motion at a later date, and defendant relied to his detriment on
that representation, “circumstances [we]re sufficiently rare and extraordinary
to warrant equitable tolling”); see Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir.
2002) (noting the absence of affirmative statements comparable to those in
Patterson on which the petitioner could have relied upon to his detriment).
       Further, Hayes argues that the filing of his first § 2254 petition tolled the
limitations period, but that the district court “overlooked” the effect of the
petition when deciding whether his instant § 2254 petition was timely. “A plain
reading of [ ] AEDPA compels the conclusion that COAs are granted on an issue-
by-issue basis, thereby limiting appellate review to those issues alone.” Lackey
v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997). Because Hayes’s argument
exceeds the narrow issue for which a COA was granted: whether the instant
petition for a writ of habeas corpus was rendered timely due to equitable tolling




denial of rehearing misled him to believe that his claims challenging his escape conviction had
been exhausted, justifying his October through March inaction in state court while he awaited
the district court’s judgment. Here, however, Hayes’s early § 2254 filing could not have been
intended to provide protection from AEDPA’s clock, since he subsequently chose to dismiss the
petition in its entirety, even after being warned by the MJ that the statute of limitations had
expired and afforded an opportunity to amend.


                                              11
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triggered by the state court’s repeatedly misfiling the petitioner’s appellate and
state post-conviction pleadings,” we must not consider it.7 (Emphasis added.)
                                   III. CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s dismissal of
Hayes’s § 2254 petition as time-barred.




       7
          Nevertheless, it is well established that the limitations period under § 2244(d)(2) is
not tolled during the pendency of a federal petition that is dismissed for failure to exhaust. See
Duncan, 533 U.S. at 181–82 (noting that § 2244(d)(2) does not toll the limitation period during
the pendency of a federal habeas petition); see also Grooms v. Johnson, 208 F.3d 488, 489 (5th
Cir. 1999). Furthermore, if we were to consider whether the pendency of the federal petition
justified equitable tolling, see Duncan, 533 U.S. at 183–84 (Stevens, J. concurring) (explaining
that Duncan does not preclude a court from equitably tolling the limitations period during the
pendency of a prior federal habeas proceeding), we would answer in the negative because
Hayes chose to dismiss his § 2254 petition in its entirety, despite being warned that a
subsequent petition would be untimely and given an opportunity to amend his petition by the
MJ. Thus, Hayes was neither actively misled by the district court nor prevented in some
extraordinary way from asserting his rights. See Felder, 204 F.3d at 171.

                                               12
