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

                                                                     FILED
                               No. 18-20127                    January 7, 2020
                                                                Lyle W. Cayce
PEDRO ERNESTO UMANA,                                                 Clerk


            Petitioner - Appellant

v.

LORIE DAVIS, 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. 4:17-CV-01421


Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:
     The court having been polled at the request of one of the members of the
court and a majority of the judges who are in regular active service and not
disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35),
rehearing en banc is DENIED.
     In the poll, 6 judges voted in favor of rehearing en banc, and 10 voted
against. Chief Judge Owen and Judges Jones, Smith, Willett, Ho, and Oldham
voted in favor. Judges Stewart, Dennis, Elrod, Southwick, Haynes, Graves,
Higginson, Costa, Duncan, and Engelhardt voted against.
                           No. 18-20127




ENTERED FOR THE COURT:


/s/ James E. Graves, Jr.
_____________________________
James E. Graves, Jr.
United States Circuit Judge




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JERRY E. SMITH, Circuit Judge, dissenting from the denial of rehearing
en banc:

       Until now, this court has never granted equitable tolling where a pris-
oner waited as long as Umana did to file his state habeas corpus petition. This
remarkable result turns the concept of equitable tolling on its head. District
Judge Keith Ellison did everything he was supposed to do in conscientiously
dismissing on limitations, yet the panel accuses him of abuse. And in denying
rehearing en banc, the active judges, by a strong 10−6 margin, show little
concern.

       Although it invokes Hardy v. Quarterman, 577 F.3d 596 (5th Cir. 2009)
(per curiam), the panel never mentions Hardy’s salient admonition that equita-
ble tolling is to be granted “only in rare and exceptional circumstances.” Id.
at 598 (quotation marks removed). The panel likewise conveniently avoids
Hardy’s requirement that “a petitioner must show that he pursued the habeas
corpus relief process with diligence and alacrity both before and after receiving
notification.” Id. (cleaned up) I respectfully dissent.

                               I. The Executive Summary
       It is more difficult to muster enough votes to rehear a case en banc
where, as here, the opinion is unpublished and the state, for whatever reason,
moves neither for panel nor en banc rehearing. 1 This matter is still enbanc-
worthy because of the confusing signal the panel sends to the district judges.
Even if, arguendo, the members of the panel would have decided differently



       1 In other words, sua sponte polls are uniformly less successful. The judges are under-
standably not as likely to grant rehearing in an otherwise meritorious case if the losing party
isn’t concerned enough to file for rehearing. The state’s silence here is astonishing in light of
the fact that, as stated above, equitable tolling has never been conferred on a prisoner who
waited so long.
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from Judge Ellison had they been in his shoes, it is way over the top and beyond
reasonable imagination to say that Judge Ellison abused the wide discretion
that we are supposed to accord our district judges on this matter of purely
equitable discretion.

      In his comprehensive six-page Memorandum Opinion and Order entered
almost two years ago, Judge Ellison addressed this case with care and deliber-
ation. He noted that “[t]he federal limitation period may be tolled equitably,
but only when the petitioner shows that he has been pursuing his rights dili-
gently, and that some extraordinary circumstance stood in his way and pre-
vented timely filing” (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). He
enunciated the proper test in explaining that “a petitioner must show that he
pursued the habeas corpus process with diligence and alacrity both before and
after receiving an untimely notification” (citing Hardy, 577 F.3d at 598).

      In examining the 425-day delay in Umana’s filing after discretionary
review was refused, Judge Ellison meticulously reviewed every one of Umana’s
excuses, such as the fact that he is pro se and unfamiliar with the law and that
there were intermittent lockdowns and staff shortages. In response, Judge
Ellison judiciously reasoned that Umana’s conclusional excuses didn’t come
close to explaining why it took 425 days and that Umana’s pro se status, with-
out more, couldn’t take him off the hook from his lack of diligence (citing Felder
v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); Turner v. Johnson, 177 F.3d 390,
391−92 (5th Cir. 1999) (per curiam)).

      These are precisely the sort of evaluations we entrust to district judges,
especially those with Judge Ellison’s more than twenty years’ experience. The
panel even admits that “equitable tolling does not lend itself to bright-line
rules” and that “we must consider equitable tolling on a case-by-case basis.”
Yet this panel tars Judge Ellison with abuse of discretion for making an

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equitable judgment based on these particular facts and in full accord with
controlling law.

       The panel opinion is long on vitriol aimed at what it calls “the govern-
ment” 2 but short on reference to established, published, binding Fifth Circuit
precedent. Even on the basis of the law in place when this matter was briefed, 3
the panel was wrong. More disturbing, however, is its refusal, even now, to
budge in light of Jackson v. Davis, 933 F.3d 408 (5th Cir. Aug. 2, 2019)
(Smith, J.), of which the panel was presumably unaware when it issued its
opinion on October 11, 2019. 4 The panel declines to alter its opinion to recog-
nize that Jackson even exists.

                      II. Into the Weeds: The Law and the Facts
       The foregoing summary easily shows that the panel’s ruling is suspect.
But if the reader needs more details, and at the risk of some repetition,
I provide them now.

       The ground rules for equitable tolling in habeas cases are familiar. It’s
a remedy of last resort, and to deserve it, the petitioner must show (among
other things) that he pursued his rights with determination and persistence.
“‘The diligence required for equitable tolling purposes is reasonable diligence,
not maximum feasible diligence.’”              Id. at 411 (quoting Holland, 560 U.S.
at 653). But the late filing must result from something beyond the petitioner’s


       2 In its five-page opinion, the panel refers to “the government” seven times. It is as
though these seasoned judges were unaware of the fact that in habeas proceedings and
otherwise, this court refers to the state defendants as, e.g., “the state,” “the Director,” or
“Davis” and not as “the government,” a term uniformly reserved for the United States or its
agencies or employees. The reader can only speculate as to why the panel didn’t fix this
obvious flaw, among others.
       3   The last brief was filed January 17, 2019.
       4Neither party called the panel’s attention to the new case, nor, presumably, did the
judges or their diligent law clerks independently discover it.
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control. Id. at 410.

       The panel tosses those principles to the wind. Umana slept on his rights
for eleven out of twelve months of the AEDPA limitations period, then sought
tolling when things went awry. Yet, without a single case in support, the panel
awards him equitable tolling—a remedy that we reserved, until today, for “rare
and exceptional circumstances.” Hardy, 577 F.3d at 598. 5

                                              A.
       The facts are easy to digest, but the result is tough to swallow. Umana’s
state conviction became final on June 2, 2015. That gave him one year (until
June 2, 2016) to file a § 2254 habeas petition. See 28 U.S.C. § 2244(d)(1)(A).
With the clock ticking, Umana nonetheless waited eleven months to file a state
habeas application, which tolled federal limitations. Id. § 2244(d)(2). The
Texas Court of Criminal Appeals (“TCCA”) denied the application on Aug-
ust 10, 2016, which restarted the clock. But Umana didn’t receive notice of the
denial until April 26, 2017. He filed a federal habeas petition eight days after
receiving the notice, but, by that time, the window to file had long passed.

       Absent equitable tolling, then, Umana’s petition was untimely. Judge
Ellison granted the state a summary-judgment dismissal, holding that Umana
wasn’t entitled to equitable tolling. He hadn’t diligently pursued his rights,
the court reasonably concluded, because he waited until only one month re-
mained on the federal clock before filing for state habeas.

       The panel reverses, holding that equitable tolling was required for the



       5 It’s fair to acknowledge that in Jackson, we found abuse of discretion. The difference
is that there the refusal to grant equitable tolling ran directly afoul of “the ample precedent
from this court and other courts of appeals indicating that Jackson acted diligently . . . .”
Jackson, 933 F.3d at 411. Umana, on the other hand, offers no precedent in his favor, because
there is none.
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period between TCCA’s denial and the notice of that denial. Without even
mentioning, much less distinguishing, them, the panel states that the authori-
ties the state relied on are “easily distinguishable.” 6 The panel then claims
that Hardy, 577 F.3d at 599, controls, even though the petitioner in Hardy had
filed for state habeas just two months into the federal limitations period, id.
at 597. And in a sweeping conclusion, the panel holds that equitable tolling is
warranted because, “if not for the failure of the TCCA to inform [Umana] of its
denial of his state petition, there would have been more than sufficient time to
file his federal petition . . . .” Thus, even though Umana tarried on his rights
for eleven out of twelve months, the panel announces that Judge Ellison some-
how abused his discretion in refusing equitable tolling.

                                              B.
                                              1.
       It is the panel―not Judge Ellison―that errs. “[A] component of the obli-
gation to pursue rights diligently is not to wait until near a deadline to make
a filing, then seek equitable tolling when something goes awry.” Schmitt v.
Zeller, 354 F. App’x 950, 951 (5th Cir. 2009) (per curiam). Equitable tolling is
thus allowed only where the petitioner shows that (1) an “extraordinary cir-
cumstance stood in his way and prevented timely filing,” and, most relevantly
here, (2) “he has been pursuing his rights diligently.” Jackson, 933 F.3d at 410.
Sometimes a petitioner seeks tolling for the period between the denial of a state



       6   This is all the panel says:
          The government asserts that, as the district court found, the sole fact that
       Umana filed his state habeas petition with one month remaining on his
       AEDPA limitations period establishes a lack of diligence. However, the author-
       ities cited by the government are easily distinguishable and do not support that
       proposition.
We owed the parties and the district judges in this circuit much more of an explanation.
                                              7
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habeas petition and the notice of that denial. Where so, we examine his level
of diligence, if any, at three distinct stages. 7

       First, and crucially here, we ask how long the petitioner delayed in filing
for state habeas. See id. In granting equitable tolling in Jackson, id. at 411–
12, and Hardy, 577 F.3d at 597, we praised the petitioners for waiting only
1½ and 2 months, respectively, to file for state habeas; but in denying tolling
in Stroman v. Thaler, 603 F.3d 299, 302–03 (5th Cir. 2010) (per curiam), we
scolded the petitioner for waiting 7 months.

       Second, we examine the petitioner’s efforts to check the status of his
pending state application. See Jackson, 933 F.3d at 413. In Jackson, id., and
Hardy, 577 F.3d at 599, we credited the petitioners for requesting a status
update 15 and 11 months, respectively, after filing; in Stroman, 603 F.3d
at 302, however, we criticized the petitioner for not checking in for 18 months.

       Third, we look to how promptly the prisoner filed his federal petition
after learning that his state petition had been denied. See Jackson, 933 F.3d
at 413. In Jackson, id. at 412, and Hardy, 577 F.3d at 598, we found that
petitioners who took only 17 and 7 days, respectively, were diligent; not so
much, however, for the prisoner in Stroman, 603 F.3d at 301, who took 48 days.

                                              2.
       Umana was diligent at the second and third stages, i.e., in checking on
his pending application and in quickly filing for federal relief after learning of
the state court’s denial. But the panel effectively eliminates any requirement
that the prisoner be diligent at the first stage, because it ignores Umana’s pro-



       7 See, e.g., Jackson, 933 F.3d at 413 (requiring petitioner to show that he had been
“diligent [1] before the delay in receiving notice, [2] during the pendency of his state appli-
cation, and [3] in promptly filing his federal habeas petition after receiving notice”).
                                              8
                                     No. 18-20127
found delay in seeking state habeas. That stage is crucial, 8 and it should have
controlled.

      If a prisoner files a state application early in the twelve-month federal
limitations period, he hedges his bet, because he leaves plenty of time to peti-
tion for federal relief if the state application is denied. That is what “reasona-
ble diligence” looks like. But if he waits, as Umana did, until the clock has
nearly expired, he leaves precious little time to account for unexpected circum-
stances, such as the state court’s failure to notify him. “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) (per curiam).

      Umana put himself into this predicament. He dawdled for way too long
before filing for state habeas. If he had been as diligent as the Hardy prisoner
(2 months) or the Jackson prisoner (1½ months) in seeking state relief, then
he would have met the federal deadline even with an 8-month delay in notice.
Around 2 months would have remained. Indeed, if Umana had “advanced his
claims within a reasonable time of their availability, he would not now be
facing any time problem.” Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005).
Bizarrely, the panel insists otherwise, asserting that “any delay in filing
[Umana’s] state petition was not causally related to his untimely federal
petition.”

      That’s absolutely incorrect as a matter of law. As stated, if Umana had




      8   See id. at 411 (“What a petitioner did both before and after the extraordinary
circumstances that prevented him from timely filing may indicate whether he was diligent
overall.” (emphasis added)); Hardy, 577 F.3d at 598 (“[A] petitioner must show that he pur-
sued the habeas corpus relief process with diligence and alacrity both before and after re-
ceiving notification.” (cleaned up) (emphasis added)).
                                            9
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filed earlier, as others have, he would’ve met the federal deadline. 9 As the
state correctly observed, we had “never granted . . . equitable tolling . . . where
a petitioner waited as long as Umana to file his state habeas application.” This
case should not be the first.

                                           3.
      What the panel misapplies, it also misunderstands. It holds that Umana
deserves equitable tolling because, “if not for the failure of the TCCA to inform
him of its denial of his state petition, there would have been more than suffi-
cient time to file his federal petition.” Fairly read, that language seems to
endorse a kind of “but-for” test for equitable tolling. That is, if the prisoner
would have had enough time to file his federal petition but for the state’s delay,
then he is automatically entitled to equitable tolling to account for the delay.

      That can’t be the rule. Any time a prisoner seeks equitable tolling of
AEDPA limitations, it will necessarily be true that, absent the “extraordinary
circumstance,” he would have timely filed his federal petition. Otherwise,
equitable tolling would do him no good. As explained above, the correct test
looks to three distinct stages: (1) how long it took the prisoner to file for state
habeas, (2) how frequently he checks the status of his state application, and
(3) how quickly he files for federal habeas after receiving notice of the state
denial. The panel’s contrary rule turns an extraordinary remedy into a stan-
dard one.




      9 Maybe an eleven-month delay in seeking state habeas could be forgiven if the pris-
oner proved some unusual circumstance. But Umana merely asserted that he was pro se and
that the prison law library was supposedly closed an “inordinate” number of days, offering
no proof. As Judge Ellison court properly recognized, those were conclusional allegations,
and Umana failed to show why he couldn’t file for eleven months.
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                                          *    *    *    *    *

       The full court should have been willing to give this case a second look.
For the reasons described, the panel opinion conflicts with our well-worn
approach to evaluating requests for equitable tolling following delayed notice
of a state’s rejection of a habeas petition. And we frequently confront peti-
tioners such as Umana, who seek equitable tolling of AEDPA limitations, so
maintaining uniformity is particularly important. 10

       A prisoner’s diligence on the back end doesn’t excuse his procrastination
on the front. Nor should it. “Equity is not intended for those who sleep on
their rights,” 11 and Umana dozed for eleven months. Nothing in our caselaw
rescued him from his slumber.

       What is the hapless district judge to do when faced with this misleading
opinion? The panel does not say. So I respectfully dissent.




       10  In 2019 alone, there were at least five Fifth Circuit cases, in addition to this one, in
which habeas petitioners sought equitable tolling of the AEDPA limitations period. See
Johnson v. Davis (In re Johnson), 935 F.3d 284, 295–96 (5th Cir.), petition for cert. filed (U.S.
Dec. 13, 2019) (No. 19-6934); Jackson, 933 F.3d at 408; Jones v. Davis, 922 F.3d 271 (5th
Cir.), opinion withdrawn and superseded on reh’g, 927 F.3d 365 (5th Cir. 2019), petition for
cert. filed (U.S. Oct. 31, 2019) (No. 19-6465); Davis v. Vannoy, 762 F. App’x 208, 209 (5th Cir.
2019) (per curiam); Figueredo-Quintero v. McCain, 766 F. App’x 93, 98 (5th Cir. 2019) (per
curiam).
       11   Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010) (cleaned up).
                                               11
