                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                          REVISED APRIL 9, 2007
                                                                 March 28, 2007
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                         _____________________                      Clerk

                               No. 06-70013
                          _____________________

JOHNNY RAY JOHNSON,

                                                Petitioner - Appellant,

                                  versus

NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,

                                           Respondent - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, Houston
_________________________________________________________________

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Johnny Ray Johnson was convicted and sentenced to death for

the 1995 capital murder of Leah Joette Smith.             In the post-

conviction proceedings the Texas courts upheld his conviction and

death sentence.     In this federal habeas proceeding, the district

court denied relief on the ground that Johnson’s petition was not

timely   filed    under    the   filing    limitation   period   of     the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), and that

he had not demonstrated the rare and exceptional circumstances

necessary for application of the doctrine of equitable tolling.

Alternatively, the district court held that the state court did not
unreasonably deny relief on Johnson’s claim that his counsel

rendered   ineffective   assistance.   The   district   court   denied

Johnson’s request for a certificate of appealability (“COA”).

     Before us, Johnson requests a COA from this court to appeal

the district court’s denial of relief.         With respect to the

limitations issue, Johnson argues both equitable and statutory

tolling of the deadline.   Secondly, Johnson requests a COA for his

claim that his counsel rendered ineffective assistance by failing

to conduct a complete and thorough mitigation investigation.        He

contends that readily-available evidence regarding his troubled

childhood would have been discovered and that this evidence could

have offered some degree of understanding of and explanation for

his conduct as an adult.      His third ground for a COA is that

counsel were ineffective in failing to have a mental health expert

conduct a psychological evaluation, and that this failure was

unreasonable trial strategy because it was based on insufficient

investigation.

     We deny Johnson’s request for a COA.      We conclude that the

district court’s holding that Johnson’s federal habeas petition was

untimely under AEDPA is not debatable among jurists of reason.      We

thus find it unnecessary to address the ineffective assistance

claim, and DENY the COA.




                                  2
                                       I.

                                       A.

       Johnson was convicted and sentenced to death for the March 27,

1995 capital murder of Leah Joette Smith during the course of

committing or attempting to commit aggravated sexual assault.          The

State presented evidence, including Johnson’s confession, that

Johnson offered to give Smith, who was addicted to crack cocaine,

some crack cocaine in exchange for sex.           After Smith smoked the

crack, she refused to have sex with Johnson.          He became angry and

grabbed her, ripped her clothing off, and threw her to the ground.

When she fought back with a wooden board, Johnson repeatedly struck

her head against the cement curb.           After he hit her head against

the cement three or four times, she stopped fighting.             He then

sexually assaulted her.       During the assault, Smith told Johnson

that he had better enjoy it because she was going to file rape

charges against him.    Johnson confessed that he got very angry when

Smith hit him with the board and that it was “like something in my

head   was   just   saying   “‘KILL,    KILL,   KILL.’”   After   sexually

assaulting Smith, Johnson stomped on her face five or six times.

He walked away, but realized that he had left his wallet at the

scene, so he returned.       In his confession, he stated that when he

saw Joette’s body face up and naked, he sexually assaulted her

again and then picked up his wallet and her boots and left Smith

there on the ground to die.



                                       3
     Smith sustained numerous severe injuries to her mouth, face,

head, and neck:     her teeth were knocked out, her tongue was

displaced, both sides of her jaw bone were fractured, and she

sustained scalp lacerations and a subdural hematoma.    The medical

examiner testified that she died as a result of swallowing her own

blood that had accumulated in the back part of her throat when her

jaw bones were fractured.   He testified that the subdural hematoma

also contributed to her death, but that she could have survived it

had she received prompt medical attention.     The medical examiner

testified that Smith did not die instantly, because it takes a

while for the blood to accumulate in the back of the throat.

                                 B.

     The jury convicted Johnson for Smith’s brutal murder. Then at

the punishment phase, the jury heard the State’s evidence of

Johnson’s extensive criminal history, beginning in 1975, including

numerous other brutal sexual assaults and murders.

     Johnson’s niece, Elizabeth Wright, testified that when she was

eight or nine years old, Johnson asked her to walk to a store in

Houston with him.   As they were walking down a trail leading to the

back of the store, Johnson knocked Elizabeth down, covered her

mouth, pulled her pants to the side, and raped her.    He threatened

to kill her if she ever told anyone.

     In 1983, Johnson was convicted of sexual assault in Travis

County and was sentenced to five years in prison.    He confessed to

raping numerous women in Houston and Austin after his release from

                                  4
prison.     When he drove a cab, he stated that he would pick up

prostitutes and take them out to the country, rape them, and leave

them there, naked.

     Theresa Lewis testified that Johnson picked her up in his cab

in 1986.    She got into the backseat, but Johnson insisted that she

sit in the front seat.    When he asked her to have sex with him in

exchange for $20, she refused and told him she was not a whore.

This made him so angry that he pulled over, grabbed her by the neck

and began choking her.    When she fought back, he struck her in the

face with his fist, and then raped her.   He was convicted for that

crime in 1987, and sentenced to five years in prison.

     Johnson then met Dora Ann Moseley, a prostitute, who became

his wife.     They moved to Austin in 1991 and had some children

together.    Johnson once beat her so badly that he claims he would

have killed her if the police had not been called.      She filed a

police report a couple of weeks later, after he beat her again.

Johnson spent six months in jail for that beating.

     Johnson confessed that in the summer of 1994, he met a girl on

11th Street in Austin.    They smoked crack and drank, and when she

refused to have sex with him, he beat her.   He said that she pulled

out a razor and cut him on the left side of his neck and that he

then bashed her head in and stomped on her.    He then claimed that

he took her head and gave himself oral sex before having “regular”

sex with her.    He left her dead body behind a drug store on 11th

Street.

                                  5
       Johnson confessed that he then raped a woman named Amy on top

of a hill across from the Austin police station.       He then raped a

girl named Eva.      When Eva tried to steal his crack cocaine, he

grabbed her by the hair, smashed her head into a rock, and then

raped her.     He said that Eva ran away, yelling and screaming.

Shortly before Christmas in 1994, Johnson confessed that he lured

a girl into a graveyard in exchange for crack cocaine, and that he

raped her three or four times and “slapped her around.”              He

returned to Houston at the end of December 1994.

       In February 1995, Johnson sexually assaulted Debra Jenkins,

his brother’s common-law wife’s sister-in-law.      She testified that

he grabbed her by the throat, threw her onto a bed, and began

choking her.       He cut the crotch of her pajamas with a pair of

scissors, and raped her twice.

       On March 27, 1995, a citizen found the badly decomposed body

of a female in her thirties, face-down in a water-filled gully near

some    railroad    tracks.   The   victim   had   sustained   numerous

lacerations on her face, as well as severe injuries to her mouth,

and there was evidence of manual strangulation.      Johnson confessed

that he raped and killed this woman, whose identity had not been

determined as of the time of Johnson’s trial.       He said he met her

at a crack house and offered her some crack cocaine in exchange for

sex.    She tried to leave after he refused to give her more crack

until she had sex with him, so he grabbed her by the throat and

hair and threw her to the ground.       She grabbed a rock and hit him

                                    6
on the head and he became angry and banged her head on the railroad

track.   After she passed out, he sexually assaulted her, then

dragged her to the gully and left her there.

     The jury also heard his confession that, three days later, he

killed another woman.   He said that he took her to a warehouse to

smoke some crack cocaine.      He became angry when she smoked his

crack but refused to have sex with him, so he grabbed her by the

neck and threw her down on the ground and sexually assaulted her

while he choked her.    He sexually assaulted her again later, and

they smoked some more crack.    When she jumped up, he caught her by

the hair.    When she kept fighting, he banged her head on the

pavement until she became unconscious.

     The evidence of his brutal rapes and murders seemed endless.

On April 28, 1995, the partially clothed body of a female was found

underneath a highway overpass in Houston.        She had sustained

massive head injuries, including a fractured skull and cheekbone,

and a large chunk of concrete with blood all over it was found near

her head.   The autopsy revealed that she died from a crushed head

due to blunt trauma and asphyxia due to strangulation. The marking

on her throat was consistent with someone placing his foot on her

throat and stepping down.    Johnson confessed that he killed this

woman, who had not been identified as of the time of his trial.

They smoked crack cocaine together and he became angry when she

refused to have sex with him.    She hit him with a wine bottle and

he grabbed her and swung her down to the ground.     He grabbed her

                                  7
neck and banged her head on a rock.       After she quit fighting, he

sexually assaulted her, then hit her head with a rock and left.

     Finally, Angela Morris testified that on May 5, 1995, Johnson

grabbed her by the neck as she was walking down the street.              He

took her down a driveway, struck her, threatened to kill her, and

raped her while holding a knife in his hand.         He then tied her up

with rags and left.

                                    C.

     Prior to trial, Johnson’s counsel filed motions for fees to

hire a mental health expert and to hire an investigator and

mitigation expert.    The trial court granted both motions.       Because

Johnson’s   trial   counsel   who   handled   the   punishment   phase   is

deceased, the habeas record is incomplete concerning the results of

employing these experts.       We do know, however, that the final

decision of his attorney at the punishment phase was to call only

one witness, Dr. Windel Dickerson, a psychologist.          We also know

that Dr. Dickerson was called only to testify that prisoners get

less violent as they grow older and that prisoners whose crimes

involved drug use were less likely to commit acts of violence in

the controlled setting of a prison.       In this connection, the jury

was instructed that Johnson, who was 37 years old, would not be

eligible for parole until he had served forty years in prison.

This limited use of the expert at trial may well have been trial

strategy (given Johnson’s horrendous record of rape and murder) as

other counsel involved in the trial have suggested (see infra, page

                                     8
11), but because of the death of trial counsel, we are left only to

speculate.

     The       record    further    shows       that    his   attorney     introduced

Johnson’s disciplinary records from his three prior incarcerations

in the Texas Department of Criminal Justice, and argued that these

records showed his lack of violent behavior while incarcerated and

thus indicated that he would not pose a danger to society if

sentenced to life imprisonment.

     In    closing      argument,    defense      counsel     urged      the   jury    to

consider the fact that, if he were sentenced to life imprisonment,

Johnson would have to serve forty years in prison before he would

even be eligible for parole, and argued that Johnson’s prison

disciplinary      records,    introduced         as    exhibits     by   the   defense,

demonstrated his non-violent behavior while incarcerated.                       Counsel

also pointed to Dr. Dickerson’s testimony that people are less

likely to commit crimes as they get older and that they are less

likely    to    commit    crimes    of   violence        in   the    structured       and

controlled setting of a prison, especially given that there would

be no alcohol, crack cocaine, or prostitutes available to Johnson

in prison.

     The jury returned a punishment verdict after deliberating for

only one hour and fifteen minutes.               It answered the special issue

on future dangerousness “yes” and answered the special issue on

mitigation “no”.



                                            9
       Johnson’s conviction and sentence were affirmed on direct

appeal.    Johnson v. State, No. 72,422 (Tex. Crim. App. 1998).

                                        II.

                                        A.

       Johnson filed a petition for state habeas relief on July 17,

1998.     He alleged that his trial counsel rendered ineffective

assistance (1) at the guilt-innocence phase, when they failed to

have him psychologically evaluated for the purpose of advancing an

insanity defense; (2) at the punishment phase when they failed to

have him psychologically evaluated for use as mitigation evidence,

when    records    from   the   Texas    Department    of   Criminal    Justice

indicated that he had a history of major emotional disorder which

included both auditory and visual hallucinations; and (3) at the

punishment phase, when they failed to investigate adequately his

history, when such historical information was essential in the

preparation of a biopsychosocial assessment by an expert in the

area of mitigation, thereby denying him the opportunity to present

mitigating evidence. Johnson’s discussion of these claims consists

of three pages in his state habeas application, and he did not

present any affidavits or other evidence in support of them.

       Johnson was represented by attorneys Guerinot and Millin at

trial.    Guerinot handled the guilt-innocence phase, and Millin was

responsible       for   the   punishment      phase.   As   we   have   earlier

indicated, Millin had died prior to the commencement of the state

habeas proceedings and his files could not be located.              The state

                                        10
habeas court ordered Guerinot to submit an affidavit responding to

Johnson’s    ineffective   assistance      claims.       In    his   affidavit,

Guerinot stated that Johnson never exhibited any signs of insanity

and always appeared to be lucid, competent, and sane; and that he

believed that Johnson was examined by a mental health expert, and

that Millin decided not to use the information resulting from the

examination because it was “severely detrimental” to Johnson’s

case.     Regarding the claim of failure to investigate Johnson’s

personal history, Guerinot stated that in the light of the evidence

that Johnson had terrorized and raped members of his own family, it

was unlikely that evidence in that area would have been favorable

to the defense.

      One of the prosecutors at trial, Bill Hawkins, also submitted

an affidavit in the state habeas proceeding. He stated that Millin

told him that he could not afford to put on any witnesses in the

mental health area because such testimony would hurt a lot more

than it helped.

      The state habeas court found that a psychological interview of

Johnson was conducted on December 23, 1983 (more than ten years

before the murder of Smith), when Johnson was an inmate in the

Texas Department of Criminal Justice.          In the interview, he stated

that he had visions of his mother and heard her telling him what to

do.     He stated that he twice tried to kill himself, once in the

county jail, and once by jumping off a cliff.            A month after that

interview,    psychologist   Wilson    Lilly    stated    in    clinic   notes:

                                      11
“Inmate Johnson was called in on recommendation of the mental

health screening process.    He has a history of major emotional

disorder which included both auditory and visual hallucinations.

Currently, he denies such symptoms. His mental status is clear and

appropriate except for a mild depression of mood.       He does not

desire mental health services at this time, but was advised to seek

[treatment] should any of his past symptoms return.”       The state

habeas court found that there was no mention of any mental health

problems during the records of Johnson’s later incarcerations, and

that health questionnaires completed in July and October 1992

stated that there were no signs of a mental disorder.

     The state habeas court concluded that trial counsel were not

ineffective in failing to investigate or present an insanity

defense, and that Johnson was not prejudiced thereby.   It made the

following conclusions with respect to his claims of ineffective

assistance for failure to investigate his history and failure to

have him psychologically evaluated for purposes of mitigation:

          Because trial counsel believed that the
          evidence   concerning  [Johnson]’s   personal
          history would not have been favorable to
          [Johnson]’s defense, trial counsel were not
          ineffective in failing to present evidence of
          [Johnson]’s history for the purposes of
          mitigation....

          Because the evidence showed that [Johnson] had
          terrorized and raped members of his own
          family, it was reasonable for trial counsel to
          limit [their] investigation of [Johnson]’s
          history for the purposes of mitigation....



                                12
            Because trial counsel believed that testimony
            of psychological witnesses would have hurt
            [Johnson]’s case more than it helped, it was
            reasonable for trial counsel to cho[o]se not
            to put such witnesses on the stand for the
            purposes of mitigation....

            Because [Johnson] had raped and terrorized
            members of his own family, [Johnson] has
            failed to show that he was prejudiced by any
            deficient performance on the part of his trial
            counsel in failing to put forth evidence of
            [Johnson]’s history for the purposes of
            mitigation.

            Because trial counsel believed that testimony
            of psychological witnesses would have hurt
            [Johnson]’s   case   more  than   it   helped,
            [Johnson] has failed to show that he was
            prejudiced by any deficient performance on the
            part of his trial counsel in failing to put
            forth the testimony of any additional mental
            health experts for the purposes of answering
            the mitigation or future danger special
            issues....

     The Texas Court of Criminal Appeals adopted the state habeas

court’s findings of fact and conclusions of law and denied his

application for state habeas relief on February 18, 2004. Ex parte

Johnson, No. 57,854-01 (Tex. Crim. App. 2004).         We now turn to the

federal habeas proceedings.

                                    B.

     Johnson’s federal habeas petition was stamped “filed” on

January 3, 2005.       The district court held that the petition was

untimely filed and that Johnson was not entitled to the benefit of

equitable   tolling.      The   district   court   denied   relief   on   the

alternative ground that the state court did not unreasonably deny



                                    13
relief on Johnson’s ineffective assistance claim.                    The district

court denied Johnson’s request for a COA.

                                          III.

                                           A.

       Johnson now requests a COA from this court to appeal the

district court’s ruling that his petition was untimely filed and

its alternative ruling that he is not entitled to relief on his

ineffective assistance of counsel claim.

       To obtain a COA, Johnson must make “a substantial showing of

the denial of a constitutional right.”               28 U.S.C. § 2253(c)(1)(A).

With    respect    to    the   district     court’s     procedural   ruling     that

Johnson’s habeas petition was not timely filed, Johnson must show,

“at least, 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).              To make a substantial showing

of the denial of a constitutional right with respect to the

district court’s alternative holding that the state court did not

unreasonably deny relief on Johnson’s ineffective assistance of

counsel claim, Johnson must demonstrate “that jurists of reason

could    disagree       with   the    district      court’s   resolution   of    his

constitutional claims or that jurists could conclude the issues

presented    are    adequate         to   deserve    encouragement    to   proceed

further.”    Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

                                           14
     In making our decision whether to grant a COA, we conduct a

“threshold inquiry”, which consists of “an overview of the claims

in the habeas petition and a general assessment of their merits.”

Id. at 327, 336.     “While the nature of a capital case is not of

itself sufficient to warrant the issuance of a COA, in a death

penalty case any doubts as to whether a COA should issue must be

resolved in the petitioner’s favor.”       Ramirez v. Dretke, 398 F.3d

691, 694 (5th Cir. 2005) (internal quotations, citations, and

brackets omitted).

     We address Johnson’s equitable tolling claim first, and then

turn to his statutory tolling claim, which was not presented to the

district court.    Because we conclude that Johnson has not made a

substantial showing that the district court erred in its procedural

ruling, it is not necessary for us to address Johnson’s request for

a COA on the ineffective assistance claim.

                                   B.

     AEDPA   establishes   a   one-year   statute   of   limitations   for

seeking federal habeas corpus relief from a state-court judgment.

28 U.S.C. § 2244(d)(1).    That period begins to run from “the date

on which the [state court] judgment became final by the conclusion

of direct review or the expiration of the time for seeking such

review.”     28 U.S.C. § 2244(d)(1)(A).       The one-year period is

tolled, however, during the pendency of a state prisoner’s post-

conviction proceedings in state court.       28 U.S.C. § 2244(d)(2).



                                   15
     Johnson’s judgment of conviction became final on May 26, 1998.

Therefore, the limitations period began to run on May 27, 1998.

The limitations period was tolled, however, from July 17, 1998,

when Johnson filed his state habeas petition, until February 18,

2004, when the Texas Court of Criminal Appeals denied state habeas

relief.   Therefore, Johnson had 313 days remaining after his state

writ was denied, or until December 27, 2004, to file his federal

habeas petition.

     Johnson does not dispute that the deadline for filing his

federal habeas petition was Monday, December 27, 2004.             In the

district court, Johnson contended that, while putting finishing

touches on the petition at approximately 7:30 p.m. on the due date,

his counsel’s computer failed. Johnson also claimed that the State

agreed to extend the deadline for filing the petition until “at

least” Thursday, December 30.     Johnson maintained that this date

was “just an estimate,” and that his counsel “assumed ... that the

agreed upon extension period was somewhat flexible.”          Counsel for

the State denied agreeing to any extension of any length.         Johnson

asserts that   the   petition   was   filed   on   Friday,   December   31,

although it was not stamped “filed” by the district court clerk’s

office until January 3, because there was a problem with the time-

stamp at the court’s after-hours drop box.         Johnson argued to the

district court that he is entitled to equitable tolling of the

statute of limitations because of the computer failure and the

State’s alleged agreement to extend the deadline.

                                  16
      The district court stated that the most generous reading of

Johnson’s claim of equitable tolling is that the State agreed to an

extension      of   time   until     December    30,    but   by    Johnson’s     own

admission, he did not attempt to file the petition until December

31.     Although he justified the late filing by asserting that he

“assumed” the deadline was flexible, he pointed to no statement by

the State supporting that assumption and thus could not claim that

the State in any way misled him.                The district court held that

Johnson’s explanation for his late filing, at most, rises only to

the level of excusable neglect, that does not support equitable

tolling.       The court noted that Johnson offered no reason why he

could    not    have    filed    a   skeletal    petition        (handwritten,     if

necessary) either by the statutory deadline or by the allegedly

extended deadline.         The court stated that Johnson could have

supplemented the skeletal petition after the computer was repaired.

Therefore,      the    court    concluded    that      Johnson     had   failed    to

demonstrate the rare and exceptional circumstances required for

application of equitable tolling.

      The State points out that Johnson’s counsel were appointed on

March 12, 2004, and thus had nine months in which to prepare the

petition before the deadline of December 27, 2004.                       The State

observes that the computer failure occurred at 7:30 p.m. on the

very day the petition was due to be filed, and thus counsel waited

until the last minute to complete the petition, demonstrating a



                                        17
lack of diligence which cannot support application of the doctrine

of equitable tolling.

     The    Supreme    Court    has   not   decided   whether    the   AEDPA

limitations   period    may    be   equitably   tolled.   In    Lawrence   v.

Florida, 127 S.Ct. 1079 (2007), however, the Supreme Court, when

assuming without deciding that equitable tolling is available, was

specific:     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.”            Id. at

1085 (internal quotations and citation omitted).           In accord with

the Lawrence standard, our court has held that equitable tolling of

the AEDPA limitations period is available “‘in rare and exceptional

circumstances’ where it is necessary to ‘preserve[] a plaintiff’s

claims when strict application of the statute of limitations would

be inequitable.’”      Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir.

2002) (quoting Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.

1998)). We have applied equitable tolling where the district court

has done something to mislead the petitioner into believing that

his petition is due after the limitations period has expired.

Compare Prieto v. Quarterman, 456 F.3d 511, 514-15 (5th Cir. 2006)

(equitable tolling applied where petitioner requested and received

extension of time from district court before deadline to file

habeas petition and relied in good faith on that extension) and

United States v. Patterson, 211 F.3d 927, 931-32 (5th Cir. 2000)

(applying equitable tolling where district court granted pro se

                                      18
prisoner’s request to dismiss petition without prejudice so that

prisoner could retain counsel and refile petition later), with

Fierro v. Cockrell, 294 F.3d at 682-84 (refusing to apply equitable

tolling   where   district    court    issued   scheduling    order   at

government’s request setting deadline for habeas petition outside

limitations period, because the scheduling order was requested and

issued after the limitations period had expired and thus neither

the request nor the order could have contributed to Fierro’s

failure to file within the limitations period).

     “[N]either ‘excusable neglect’ nor ignorance of the law is

sufficient to justify equitable tolling.”       Id. at 682.   The court

in Fierro “recognize[d] that the application of procedural rules

may appear formalistic -- particularly in a death penalty case --

when applied to bar a facially plausible habeas petition because of

an error by habeas counsel.”    Id. at 684.     However, the court also

noted “that Congress has imposed a strict one-year limitations

period for the filing of all habeas petitions under the AEDPA,

subject only to the narrowest of exceptions.”          Id.    The court

concluded that the circumstances of Fierro’s case -- his counsel’s

mistaken assumption that the statute of limitations did not apply

to successive habeas petitions and the scheduling order setting the

deadline for filing the petition beyond the limitations period --

were not “the sort of rare and exceptional circumstances that would

justify equitable tolling.”    Id.



                                  19
     In Lawrence, also a death penalty case, the petitioner argued,

inter alia, “that his counsel’s mistake in miscalculating the

limitations period entitle[d] him to equitable tolling.” 107 S.Ct.

at 1085.    The Supreme Court rejected that contention, noting that,

“[i]f credited, this argument would essentially equitably toll

limitations periods for every person whose attorney missed a

deadline.”    Id.   The Court stated that “[a]ttorney miscalculation

is simply not sufficient to warrant equitable tolling, particularly

in   the     postconviction        context    where       prisoners    have   no

constitutional right to counsel.”            Id.

     The    circumstances     of    Johnson’s      case   are   more   like   the

circumstances in Fierro and Lawrence than those in Prieto and

Patterson.     His counsel was well aware of the deadline and had

ample time to prepare the petition, but waited until the very last

minute to complete it.      Even when counsel’s computer failed on the

evening of the due date, counsel could have filed a skeletal

handwritten petition and supplemented it later.                 Even accepting

Johnson’s counsel’s assertion that the State’s counsel agreed to

extend the deadline until December 30 (which the State denies)

Johnson’s counsel must have known that an attorney for the State

has no authority to extend the statutory deadline established by

Congress.    In any event, counsel still did not file the petition

until December 31, relying on a completely unsupported “assumption”

that the extension allegedly agreed to by the State was “flexible”.



                                       20
     We are not persuaded that reasonable jurists would find

debatable   the   district   court’s    decision   that    Johnson   is   not

entitled to equitable tolling of the statute of limitations based

on the circumstances present in this case.          Counsel was aware of

the deadline, and had months in which to complete the petition, but

waited until the very last minute on the due date to complete work

on it when the computer failed.             Notwithstanding the computer

failure, counsel offers no explanation as to why a handwritten

skeletal petition could not have been filed on the due date, to be

supplemented later.    The State denies agreeing to any extension --

and indeed, it had no authority to extend the statutory deadline.

Johnson’s counsel must have known that they could not rely on such

an unauthorized extension and obviously cannot now argue that they

were “misled” into believing that the statutory deadline had been

extended.     Even   assuming   such   an   agreement   with   the   State’s

attorney existed, there is no documentation for it, and certainly

nothing to substantiate counsel’s assumption that the deadline was

“flexible”.   Finally, counsel still did not file the petition on

the allegedly agreed-upon deadline; instead, they say that they

attempted to file it after hours the next day, even though it was

officially stamped on January 3, some seven days after it was due.

These circumstances are not “rare and extraordinary” and cannot

justify equitable tolling under our precedent.            Moreover, Johnson

cannot possibly satisfy the Supreme Court standard set out in

Lawrence, which makes clear that even if equitable tolling of

                                   21
AEDPA’s statute of limitations might be available, the petitioner

must pursue his rights diligently (here Johnson had nine months to

file his petition and waited until the last minute) and second,

some extraordinary circumstance must have stood in his way of a

timely filing (here, nothing stood in his way of a timely skeletal

filing).

                                  C.

     Johnson contends, for the first time in his COA application

filed in this court, that his petition was timely filed because the

90-day period for filing a petition for a writ of certiorari from

the Texas Court of Criminal Appeals’ denial of state habeas relief

should be included in the time during which his state habeas

application was “pending”.     Because Johnson did not raise this

statutory tolling argument in the district court, or request a COA

from the district court for this claim, this court has no authority

to grant a COA for the claim.     See Goodwin v. Johnson, 224 F.3d

450, 459 & n.6 (5th Cir. 2000).

     Furthermore, this contention is foreclosed by Supreme Court

and Fifth Circuit precedent.   See Lawrence v. Florida, 127 S.Ct. at

1083 (holding that the one-year limitations period is not tolled

during the pendency of a petition for certiorari from denial of

state habeas relief); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.

1999) (limitations period is not tolled “from the time of denial of

state habeas relief by the state high court until the time in which



                                  22
a petitioner could have petitioned the United States Supreme Court

for certiorari”).

                                    D.

     Because we conclude that the district court’s procedural

ruling is not debatable, it is not necessary for us to address

whether   reasonable    jurists   would   find   debatable   the   district

court’s   alternative    ruling    that   the    state   courts    did   not

unreasonably apply clearly established federal law in denying

relief on Johnson’s ineffective assistance claim.*

     *
      We do note, however, that Johnson did not present to the
state courts any mitigating evidence that allegedly could have been
discovered in an adequate investigation. Johnson explains that
because his claim is a “categorical” one, it is not dependent on
proof that particular testimony or evidence was available. But see
Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005) (“To establish
that an attorney was ineffective for failure to investigate, a
petitioner must allege with specificity what the investigation
would have revealed and how it would have changed the outcome of
the trial.”). In federal court, he submitted an affidavit of a
mitigation specialist who stated that she had spoken with friends
and family members who would have been willing to testify had they
been asked, and that she had discovered evidence concerning
Johnson’s extensive emotional, physical, and sexual abuse suffered
in a number of state-sponsored foster homes; limited success in
school due to a low IQ, behavioral problems and learning
disabilities; difficulty adjusting to inner-city life in Austin
after    having    lived    in     a   smaller     community;    an
“untreated/undiagnosed mental illness” that affected his ability to
function normally at home and at work; and an extensive family
history of, and genetic predisposition to, substance abuse. None
of the individuals referred to in the mitigation specialist’s
affidavit presented affidavits in either the state or federal
habeas proceedings. See Dowthitt v. Johnson, 230 F.3d 733, 746
(5th Cir. 2000) (a claim is not exhausted when the petitioner
offers in federal court material additional factual allegations and
evidentiary support that were not presented in state court).

     The district court held that, even if considered, the
mitigation specialist’s affidavit would provide no grounds for

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                               IV.

     For the foregoing reasons, Johnson’s application for a COA is

                                                           DENIED.




relief because, in the context of Johnson’s extensive history of
extreme and brutal violence, it is highly unlikely that evidence of
Johnson’s childhood abuse and privations in foster homes was so
compelling that there is a reasonable probability that at least one
juror could have reasonably determined that death was not an
appropriate sentence. As we have indicated, we do not address this
holding of the district court.


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