Cofer v. Johnson ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40878
Summary Calendar
Civil Action No. 6:99-CV-209
DANNY GENE COFER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court for the
Eastern District of Texas
July 14, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Cofer was granted a COA to appeal whether his
late filing of a federal habeas petition can be justified by the
doctrine of equitable tolling. Having considered the briefs,
record and opinions of the magistrate judge and district judge, we
reject Cofer’s contention and affirm the dismissal of his untimely
petition.
*
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opinion should not be published and is not precedent except under the limited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.
Cofer missed the AEDPA-required deadline for filing his
federal habeas petition by more than two months, even if the filing
dates are considered in his favor. He does not deny this, but he
asserts that his state court records were unjustifiably kept out of
his possession for five months because of postal service
mishandling, that the state court records were his sole source of
information, and that delay caused by prison and postal officials
prevented him from meeting the federal deadline. In short, Cofer
contends that he has demonstrated an exceptional circumstance
warranting equitable tolling.1
The district court’s refusal to invoke the doctrine of
equitable tolling is reviewed for abuse of discretion. Ott v.
Johnson, 192 F.3d 510, 513 (5th Cir. 1999), petition for cert.
filed, (U.S. March 2, 2000) (No. 99-1476). As Ott states,
equitable tolling is applied only when the relevant facts present
sufficiently “rare and exceptional circumstances” that would
warrant application of the doctrine. Id. Equitable tolling
applies principally where the plaintiff is actively misled by the
defendant about the cause of action or is prevented in some
extraordinary manner from asserting his rights. Id. Excusable
neglect does not support equitable tolling. Id. at 513-14. In
addition, in order to justify equitable tolling, the petitioner
1
Cofer also briefs the merits of the issues raised in his habeas
claim, but these were not discussed by the district court and are not on appeal
before us. Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
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must have acted diligently in guarding his rights. See Coleman v.
Johnson, 184 F.3d 398, 403 (5th Cir. 1999).
This case presents neither the “rare and exceptional
circumstances” nor sufficient evidence of Cofer’s diligence to
warrant equitable tolling. Despite postal officials’ assumed delay
in transmitting Cofer his state court records, he still received
them in August 1998, well within the initial one-year federal
habeas deadline (January 5, 1999). Offsetting the delay caused by
third parties is Cofer’s lack of diligence in his own behalf.
Cofer waited almost two months after receiving the state mandate
affirming his conviction and more than six months after the court
of appeals confirmed his conviction before even ordering the state
court records for use in habeas proceedings. He then delayed
filing his state habeas petition until five months after obtaining
the state court records in August 1998. Even after the denial of
his state petition, Cofer waited another month to file a federal
habeas petition.
The totality of these circumstances does not afford a
basis for the rare and unusual relief of equitable tolling, as the
district court held. Accordingly, the judgment dismissing Cofer’s
habeas petition is AFFIRMED.
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