                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS
                                                            October 6, 2006
                      FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk


                           No. 04-51062



     CARLOS FLORES, JR.,

                                       Petitioner-Appellant,

                                v.

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

                                       Respondent-Appellee.



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



Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:


     Carlos Flores, Jr., appeals the district court’s denial of

relief on his 28 U.S.C. § 2254 petition.   We affirm the district

court’s judgment on grounds that Flores’ § 2254 petition is barred

by the one-year statute of limitations found in 28 U.S.C. §

2244(d).

           I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

     On February 25, 1999, a jury found Flores guilty of the felony

offenses of murder and deadly conduct.        The court of appeals
affirmed Flores’ conviction on August 23, 2000.                 He did not seek a

petition for discretionary review. The court of appeals issued its

mandate on November 17, 2000.             Flores waited until November 15,

2001, to file his state habeas application, which was denied on

April 2, 2003.          He filed his federal habeas petition December 6,

2002, while the state application was still pending, and the

respondent filed a motion to dismiss Flores’ application as time-

barred pursuant to the one-year statute of limitations found in 28

U.S.C. § 2244(d).

       Respondent argued that the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review on September 22, 2000, thirty days after the

court of appeals affirmed Flores’ conviction, which constituted the

date       on   which   Flores   could   not   seek   further    direct   review.1

Because the period for Flores to timely file a habeas application

therefore expired on September 22, 2001, the state application he

filed on November 15, 2001, had no tolling effect.                  The district

court invoked equitable tolling, reached the petition’s merits, and

denied relief.          Flores now appeals the district court’s denial of

relief.

                             II. STANDARD OF REVIEW


       1
      Texas Rule of Appellate Procedure 68.2 provides that a
petition for discretionary review must be filed within 30 days
after the day the court of appeals’ judgment was rendered or the
day the last timely motion for rehearing was overruled by the court
of appeals.

                                          2
     We review the district court’s decision to invoke equitable

tolling for an abuse of discretion.   Cousin v. Lensing, 310 F.3d

843, 848 (5th Cir. 2002).   A court abuses its discretion when it

makes an error of law.   United States v. Riggs, 314 F.3d 796, 799

(5th Cir. 2002).

                         III. DISCUSSION

     In Roberts v. Cockrell, we held that a state conviction

becomes final when the time for seeking direct review expires,

regardless of when the state court issues its mandate.     319 F.3d

690, 694 (5th Cir. 2003). Under Roberts, Flores’ conviction became

final on September 22, 2000, thirty days after the court of appeals

affirmed the trial court’s judgment.2      Roberts had not yet been

decided when Flores filed his application,3 however, and some

uncertainty existed at that time as to when a conviction is made

final for purposes of the § 2244(d) statute of limitations.   Under



     2
      While the filing of a state habeas application ordinarily
tolls the federal one-year statute of limitations, Flores did not
file his state application until November 15, 2001 — more than one
year after his sentence became final, and almost two months after
the statute of limitations expired. See Scott v. Johnson, 227 F.3d
260, 263 (5th Cir. 2000)(holding that state applications filed
after expiration of limitations period do not toll limitations
period).
     3
      If the holding in a case is applied retroactively to the
parties in that case, it must be applied retroactively to the
parties in other cases. See Sterling v. Block, 953 F.2d 198, 199
(5th Cir. 1992). We applied the holding of Roberts to the parties
therein and affirmed the dismissal of the § 2254 petition as time-
barred; the holding of Roberts is thus also retroactively
applicable to Flores.

                                3
Texas law, a direct appeal is final when the court of appeals

issues its mandate.   See Ex Parte Johnson, 12 S.W.3d 472, 473 (Tex.

Crim. App. 2000).     In contrast, § 2244(d)(1)(A) directs that a

conviction is final at “the expiration of the time for seeking

[discretionary] review.”

     A split existed among circuits as to whether federal or state

law controlled the issue at the time Flores filed his petition.4

There was also disagreement among the district courts of this

Circuit.5   It is understandable that Flores’ counsel may have

believed that his conviction was not final until the court of

appeals issued its mandate.    See Roberts, 319 F.3d at 693 (“The

assertion that we should look to state law to determine when a

state conviction is final is not without support.”).    At the time

of Flores’ correct application deadline, September 22, 2001, the


     4
      See, e.g., Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir.
2001) (holding that under Florida law, issuance of mandate on
direct appeal makes criminal judgment final, and that that date
will be used for purposes of § 2244(d)(1)(A)). But see Wixom v.
Washington, 264 F.3d 894, 897-98 (9th Cir. 2001) (rejecting, for
purposes of § 2244(d)(1)(A), use of Washington state law which
views issuance of mandate as making conviction final).
     5
      See Mott v. Johnson, No. 3:01-CV-0171-R, 2001 WL 671476, at
*2 (N.D. Tex. June 12, 2001) (stating that petitioner's conviction
became final thirty days after court of appeals rendered judgment).
But see Royale v. Cockrell, No. 3:01-CV-1063-X, 2001 WL 1148946, at
*3 (N.D.Tex. Sept. 18, 2001) (stating that “finality of a judgment
is determined pursuant to state law” which holds that judgment does
not become final until mandate has issued); Howard v. Johnson, No.
3:00-CV-2032-P, 2001 WL 720489, at *2 (N.D. Tex. June 21,
2001)(same); Rose v. Johnson, No. 3:01-CV-0386-M, 2001 WL 880689,
at *1 (N.D. Tex., June 21, 2001)(same); Hunt v. Johnson, No. 3:01-
CV-0578-M, 2001 WL 484191, at *1 (N.D. Tex, May 3, 2001)(same).

                                  4
district courts in the Northern District of Texas were not in

agreement.

     The Fifth Circuit had not yet spoken on the issue, none of the

district courts had issued published opinions, and the most recent

federal appellate opinion, Wixom v. Washington, held that federal

law controlled.    264 F.3d at 897-98.        The question was certainly

not settled.

     Equitable    tolling   of   the    one-year   limitations    period   is

appropriate only in “rare and exceptional circumstances.”            Felder

v. Johnson, 204 F.3d 168, 170–71 (5th Cir. 2000)(internal quotation

marks and citations omitted).          We have previously “made it clear

that a lack of knowledge of the law, however understandable it may

be, does not ordinarily justify equitable tolling.”               Fierro v.

Cockrell, 294 F.3d 674, 683 (5th Cir. 2002).              Flores’ counsel

should have been aware of the circuit split, as well as the

conflicting district court case three months earlier.            Despite the

handful of district court cases to the contrary, it was still

unclear whether state or federal law controlled; Flores should have

elected to err on the side of caution and abide by the earlier of

the two possible deadlines.      See Fierro, 294 F.3d at 683 (stating

that “such uncertainty should have militated against taking an

unnecessary risk by waiting to file a motion for authorization and

habeas petition”).

     This Court, “and the district courts, guided by precedent,


                                       5
must examine each case on its facts to determine whether it

presents sufficiently          ‘rare   and   exceptional     circumstances’     to

justify equitable tolling.”            Fisher v. Johnson, 174 F.3d 710, 713

(5th Cir. 1999).       “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.”       Coleman    v.   Johnson,      184   F.3d   398,   402    (5th   Cir.

1999)(citation omitted).           Nothing in the record suggests that

Flores’ situation was unique for the purposes of equitable tolling,

nor that the state or court in any way prevented him from asserting

his rights.6

      The district court based its decision to invoke equitable

tolling on the premise that Flores faced a dilemma between filing

his   state   habeas     application     within    the    one-year     limitations

period, and exhausting his claims in state court.                While it is true

that, under Texas law, a state habeas application filed before the

issuance of the court of appeal’s mandate is premature and is

subject to dismissal without prejudice, see Ex Parte Johnson, 12


      6
      It is true that we have invoked equitable tolling when a
federal district court order unintentionally misled a petitioner
into believing that a subsequent federal writ petition would not be
time-barred. United States v. Patterson, 211 F.3d 927, 931 (5th
Cir. 2000). We also did not find an abuse of discretion when a
district court concluded this Court similarly could have misled a
petitioner into believing that a subsequent federal writ petition
would not be time-barred. Alexander v. Cockrell, 294 F.3d 626,
629-30 (5th Cir. 2002).       However, both cases, unlike here,
concerned orders or opinions directed at the particular petitioner.


                                         6
S.W.3d at 473, the court of appeals issued its mandate on November

17, 2000, leaving Flores nearly ten months in which to file his

habeas application.    Rather than placing Flores “in a bind,” as the

district court thought, ten months was ample time for him, with the

assistance of counsel, to compose a habeas petition for filing in

state and federal court.      See Fisher, 174 F.3d at 715 (pro se

petitioner who was incapacitated when placed in psychiatric ward

for seventeen days not entitled to equitable tolling where he still

had over six months to complete his federal habeas petition after

his return to his usual quarters). Rather than diligently pursuing

his relief, however, Flores waited until November 15, 2001 — only

two days shy of what he thought was the deadline — to file for

state habeas relief.    See Coleman, 184 F.3d at 403 (“In order for

equitable tolling to apply, the applicant must diligently pursue

his §2254 relief.”).

     In the absence of “rare and exceptional circumstances,” the

district court abused its discretion in invoking equitable tolling

where Flores, in the face of uncertainty as to which date to abide

by, elected the later date.

     Given that Flores’ petition was time-barred, we do not reach

the merits of Flores’ claims of ineffective assistance of counsel.

                            IV. CONCLUSION

     For the foregoing reasons, we affirm the district court’s

judgment on grounds that Flores’ § 2254 petition is barred by the

one-year statute of limitations.

                                   7
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