                                 IN THE UNITED STATES COURT OF APPEALS

                                                    FOR THE FIFTH CIRCUIT


                                                                 No. 00-10836




JOEL THOMAS LEWIS,
                                                                                                                      Petitioner-Appellant,

                                                                        versus

JANIE COCKRELL, Director,
Texas Department of Criminal Justice,
Institutional Division,

                                                                                                                       Respondent-Appellee.



                                         Appeal from the United States District Court
                                             for the Northern District of Texas

                                                                 March 5, 2002


Before JONES, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

           Texas state prisoner Joel Thomas Lewis (“Lewis”) challenges the district court’s sua sponte

dismissal of his 28 U.S.C. § 2254 petition because o f untimeliness. We granted a certificate of

appealability (COA) on (1) whether we may consider Lewis’s equitable tolling argument, raised for

the first time on appeal, and (2) whether this argument has merit. Because we find these

circumstances to be insufficient to warrant equitable tolling, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited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.
                        FACTUAL AND PROCEDURAL BACKGROUND

        Lewis was convicted of possession of less than one gram of methamphetamine in Texas state

court on June 24, 1997 and sentenced to a twenty-year jail term. On July 9, 1998, his conviction was

affirmed by the Texas Court of Appeals, Eleventh District, on direct appeal. His motion for rehearing

was overruled on July 30, 1998, and he did not seek a petition for discretionary review (PDR). Lewis

filed a st ate habeas corpus application on June 1, 1999, which was denied by the Texas Court of

Criminal Appeals on September 8, 1999.

        Lewis’s § 2254 application is dated May 31, 2000, but was date-stamped “filed” by the United

States District Court for the Northern District of Texas on June 5, 2000. The matter was referred

to a magistrate judge who, on June 7, 2000, ordered Lewis to either submit an in forma pauperis

application or pay the filing fee. On July 19, 2000, the district court withdrew the order referring the

case to the magistrate judge and sua sponte entered an order of summary dismissal, dismissing his §

2254 petition with prejudice as time-barred pursuant to 28 U.S.C. § 2244. The district court found

that Lewis’s conviction became final on August 29, 1998, giving him until August 29, 1999 to file

a § 2254 petition. The district court also found that Lewis filed his state court petition on July 12,

1999, tolling the federal limitations period until the denial of the application on September 8, 1999.

Thus, extending the limitations period by an additional fifty-nine days, the court found that Lewis had

until October 27, 1999 to file a timely § 2254 petition. Because Lewis’s petition was not file stamped

in federal district court until June 5, 2000, the district court dismissed his petition as untimely.

        Lewis filed a timely notice of appeal (NOA) on August 1, 2000, which did not request a COA

or present any argument. On August 9, 2000, the district court construed the NOA as an application

for a COA and denied it for the reasons stated in its order of dismissal. Lewis filed a motion for a


                                                   2
COA and supporting brief in this court on October 16, 2000, arguing for the first time on appeal that

the one-year limitations period should be equitably tolled, or was tolled due to a “state impediment”

under § 2244(d)(1)(B), because he did not receive timely notice of the denial of his direct appeal and

state habeas petition. On January 5, 2001, we denied a COA on Lewis’s state impediment arguments,

but granted a COA on two issues: (1) whether this court may consider Lewis’s equitable tolling

argument, and (2) if so, whether this argument has merit.

                                            DISCUSSION

I.     Subject Matter Jurisdiction

       We must first decide whether we have jurisdiction to hear this appeal. Respondent Janie

Cockrell (“Cockrell”) submits in her appellate brief that “this court lacks jurisdiction to consider any

of the issues briefed by Lewis on appeal.” This court generally will not grant a COA on an issue

raised for the first time in a COA application because such issues have not been addressed by the

district court in its COA determination. See Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir.

1998).1 As noted above, Lewis raised his equitable tolling argument for the first time in a request for

a COA from this court. In granting a COA in this case, however, we concluded that Whitehead

should not be strictly applied under the unusual procedural history of this case because Lewis may


       1
         In Whitehead, we recognized “the requirement that initially the district court deny a COA
as to each issue presented by the [COA] applicant.” 157 F.3d at 388. Further, we stated, in pertinent
part, that
        [a] district court must deny the COA before a petitioner can request one from this
        court. The rule contemplates that the district court will make the first judgment
        whether a COA should issue and on which issues, and that the circuit court will be
        informed by the district court’s determination in its own decisionmaking. Compliance
        with the COA requirement of 28 U.S.C. § 2253(c) is jurisdictional, and the lack of a
        ruling on a COA in the district court causes this court to be without jurisdiction to
        consider the appeal.
Id. (footnotes and internal quotations omitted).

                                                   3
not have had a reasonable opportunity to present his equitable tolling argument in response to the

district court’s sua sponte dismissal of his application as time-barred. Further, in Whitehead, we

were without jurisdiction to consider whether to grant or deny a COA on the underlying

constitutional claims presented in the petitioner’s § 2254 application because the district court

improperly dismissed the petition for failure to exhaust state remedies and did not alternatively

address the merits of the constitutional claims. Id. at 388. In this case, the district court dismissed

Lewis’s petition as time-barred and we granted a COA on the procedural issue of whether the one-

year statute of limitations period should be equitably tolled. Having granted a COA in this case, the

procedural threshold for appellate jurisdiction has been passed and we need not revisit the issuance

of the COA in order to determine whether Lewis is entitled to equitable tolling.

II.    Consideration of the Equitable Tolling Argument

       We must now consider whether we should decline to consider Lewis’s equitable tolling

argument because it is raised for the first time on appeal. “Although we generally do not entertain

issues not raised in, or decided by, the district court, we will do so in extraordinary instances when

such consideration is required to avoid a miscarriage of justice.” Doleac v. Michalson, 264 F.3d 470,

492 (5th Cir. 2001) (considering a constitutional challenge to 28 U.S.C. § 1447(d) raised for the first

time on appeal where the appellant could not have raised the issue in the district court pre-remand

because he lacked standing). We conclude that the procedural history of this case requires our

consideration of Lewis’s equitable tolling argument in order to avoid a miscarriage of justice; Lewis

did not have the opportunity to raise the issue prior to the district court’s sua sponte dismissal.




                                                  4
        When a federal district court applies the limitations period sua sponte,2 it should consider

whether the habeas petitioner has been given notice of the issue, whether the petitioner has had a

reasonable opportunity to argue against dismissal, and whether the state has intentionally waived the

defense. See Fisher v. Texas, 169 F.3d 295, 301-02 (5th Cir. 1999) (refusing to exercise discretion

to find a habeas petitioner’s claim procedurally barred where petitioner had no notice that the

procedural bar would be an issue for consideration); Magouirk v. Phillips, 144 F.3d 348 (5th Cir.

1998) (holding that district court did not abuse its discretion in raising procedural default sua sponte

where habeas petitioner was afforded both notice and a reasonable opportunity to oppose its

application). In this case, the district court withdrew its order of referral before the magistrate judge

could make a recommendation that the application be dismissed as time-barred, thus depriving Lewis

of notice of this issue and an opportunity to oppose application of the statute of limitations. Further,

because the district court dismissed the application sua sponte, without the state filing a motion to

dismiss as time-barred, Lewis did not have notice of the time-bar issue or an opportunity to respond

to such motion or the district court’s dismissal.

        Cockrell maintains, however, that Lewis could have asserted his equitable tolling claim in a

post-judgment motion under Federal Rule of Civil Procedure 59(e), in a request for COA filed with

the district court, or in his NOA. However, there is no requirement that a Rule 59 motion precede

an appeal, Lewis’s NOA did comply with the requirements of Federal Rule of Appellate Procedure

3(c)(1), and the district court construed Lewis’s NOA as an application for a COA and denied it

without offering Lewis an opportunity to respond. Thus, we will consider the merits of Lewis’s



        2
        In Kiser v. Johnson, we held that district courts may apply the AEDPA’s limitations period
sua sponte. 163 F.3d 326, 329 (5th Cir. 1999)

                                                    5
equitable tolling argument.

III.    Merits of the Equitable Tolling Argument

        In a federal habeas corpus case, we review the district court’s findings of fact for clear error,

but decide any questions of law de novo. Bernard v. Collins, 958 F.2d 634, 636 (5th Cir. 1992).

        The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year

statute of limitations for federal habeas proceedings. 28 U.S.C. § 2244(d)(1). The limitations period

usually begins to run when the state court judgment becomes final after direct appeal or the time for

seeking such review expires. Id. § 2244(d)(1)(A). Lewis was convicted on June 24, 1997, his

conviction was affirmed on July 9, 1998, and his motion for rehearing was overruled on July 30,

1998. Lewis did not file a PDR. Therefore, the judgment became final on August 29, 1998, thirty

days after his motion for rehearing was overruled. TEX. R. APP. P. 68.2(a); see also Chism v.

Johnson, No. 399CV2412-BD, 2000 WL 256875, at *1 (N.D. Tex. March 7, 2000). As a result,

Lewis had until August 29, 1999 to file his federal habeas corpus petition.

        The AEDPA also provides for tolling of the statute of limitations while “a properly filed

application for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. §

2244(d)(2). The tolling provision for pending state habeas corpus applications began on June 1,

1999, when Lewis filed his habeas petition in state court.3 On September 8, 1999, with the denial of

his appeal by the state court, the period would have started running again. Lewis had until December

6, 1999 to file a timely § 2254 application. Even with this tolling, however, the limitations period




        3
         The district court erroneously found that Lewis filed his state habeas application on July 12,
1999.

                                                   6
would have expired before Lewis filed his federal habeas corpus petition on May 31, 2000.4 Thus,

under the provisions of the statute, Lewis’s federal petition was untimely.

        Equitable tolling, however, may apply in this case. The AEDPA’s limitations period is not

jurisdictional and is subject to equitable tolling. Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998).

Tolling is appropriate, however, only in “rare and exceptional circumstances.” Id. The doctrine of

equitable tolling is generally appropriate in two distinct situations: “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, 148 F.3d 398, 402 (5th Cir. 1999) (citation and internal

quotations omitted). “In order for equitable tolling to apply, the applicant must diligently pursue his

§ 2254 relief.” Id. Moreover, the petitioner bears the burden of establishing entitlement to equitable

tolling in the AEDPA context. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).

        Lewis’s arguments in favor of equitable tolling are unpersuasive. There is no allegation in this

case that Lewis was actively misled about the filing of his federal habeas petition. See United States

v. Patterson, 211 F.3d 927, 931-32 (5th Cir. 2000) (holding that equitable tolling is appropriate

where the district court led the petitioner to believe that his federal habeas petition would not be time-

barred). Therefore, Lewis must point to some extraordinary circumstances that prevented him from

complying with the AEDPA’s limitations period. Lewis suggests that the limitations period should

be tolled because his attorney and t he st ate courts failed to notify him of the denials of his direct




        4
        Although the district court used the file stamp date, June 5, 2000, the petition was filed on
May 31, 2000, the date the application was submitted for mailing to the district court. See Sonnier
v. Johnson, 161 F.3d 941, 945 n.2 (5th Cir. 1998).

                                                    7
appeal and subsequent state habeas application.5 Lewis makes several assertions to support this

argument. Lewis’s attorney filed a state appellate brief in October 1997, but allegedly told Lewis

nothing else about the appeal until Lewis’s father contacted the attorney in May or June of 1999 and

learned that the conviction was affirmed. Soon afterwards, Lewis received a state habeas application

from his attorney, which he signed and returned. Lewis alleges that he heard nothing further from

his attorney. On April 24, 2000, Lewis and another inmate began sending letters to his attorney and

various court clerks in an attempt to ascertain the status of his appeal and state habeas corpus

application, including the relevant dates. After receiving responses from a few of the clerks, but not

from his attorney, Lewis learned the date that his state habeas corpus petition was denied and filed

his federal habeas application on May 31, 2000. Lewis states that he was not aware of the date that

his appeal was denied until the district court issued its order of summary dismissal on July 19, 2000.

        Lewis’s asserted delay in receiving information regarding the state court rulings is insufficient

to meet the high standard necessary for equitable tolling. In Phillips v. Donnelly, we determined that

in the case of a pro se prisoner who had pursued his rights with “diligence and alacrity” and could

establish that he did not receive notice of the state court’s denial of his state petition for a period of

four months, equitable tolling may apply to extend the one-year limitations period of the AEDPA.

216 F.3d at 511 (remanding the case for a hearing as to whether Phillips received untimely notice of

the denial of his state petition). We have never held that a habeas petitioner who represent ed by
                                                                                  ,

counsel, failed to receive timely notice of a state court’s ruling should be entitled to equitable tolling



        5
        To the extent that Lewis argues that the failure of the state courts and his attorney to forward
copies of decisions to him constitutes a state impediment, our previous grant of a COA rejected
Lewis’s request for a COA on these grounds. Thus, we decline to address Lewis’s state impediment
arguments.

                                                    8
as a result. There is no evidence that Lewis could not have called his attorney in order to learn the

status of the state court rulings, and there is no indication that Lewis’s father, who had contacted his

attorney regarding Lewis’s appeal, could not have made a similar inquiry about his state petition.

Thus, Lewis was not prevented in some extraordinary way from asserting his rights.

        Lewis also argues that his attorney’s failure to inform him of his right to file a PDR and

decision to file a state habeas corpus application without keeping Lewis informed of the proceedings,

amounted to ineffective assistance of counsel warranting equitable tolling. He essentially contends

that his attorney’s negligence justifies equitable tolling. Our cases have not dealt with whether mere

attorney negligence justifies equitable tolling of the limitations period of the AEDPA. We have

recognized, however, that “[a] garden variety claim of excusable neglect does not support equitable

tolling.” See Coleman, 148 F.3d at 402 (citation omitted). Because Lewis’s allegations regarding

the competency of his attorney’s representation during the post-conviction proceedings do not

present extraordinary circumstances that made it impossible to timely file his petition, he cannot

prevail on equitable tolling.

                                           CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s dismissal of Lewis’s habeas

petition as time-barred.

AFFIRMED.




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