Nelson v. Quarterman , 215 F. App'x 396 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 9, 2007
Charles R. Fulbruge III
Clerk
No. 06-70016
MARLIN ENOS NELSON,
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
(H-03-CV-3742)
Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner Marlin Enos Nelson, convicted in Texas state
court of capital murder and sentenced to death, seeks a certificate
of appealability (“COA”) to appeal the district court’s order
dismissing his petition for writ of habeas corpus. He argues that
the equitable tolling doctrine should apply to his untimely federal
habeas petition because the district court failed to appoint
federal habeas counsel until after the statute of limitations for
filing his petition had already expired. Because jurists of reason
*
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this opinion should not be published and is not precedent except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.
would not find debatable the district court’s procedural ruling, we
DENY Nelson’s application for COA.
I. BACKGROUND
Nelson was convicted of the 1987 murder of James Randle
Howard and sentenced to death in August 1988. The Texas Court of
Criminal Appeals affirmed his conviction and sentence on direct
appeal on November 25, 1992. Nelson v. State, 848 S.W.2d 126 (Tex.
Crim. App. 1992). Nelson’s conviction became final on October 4,
1993, when the U.S. Supreme Court denied Nelson’s petition for a
writ of certiorari. Nelson v. Texas, 510 U.S. 830, 114 S. Ct. 100
(1993).
The one-year statute of limitations for filing a writ of
habeas corpus in the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A), was tolled until the
appointment of state habeas counsel on January 19, 1998.1 Nelson
filed his state habeas petition 267 days later, on October 13,
1998. After the Texas Court of Criminal Appeals denied state
habeas relief on September 11, 2002, ninety-eight days remained
within the limitations period. Nelson’s petition was thus due on
or before December 19, 2002.
1
The Texas Attorney General’s office agreed to toll the time
from request until appointment of state habeas counsel in the
Texas Court of Criminal Appeals. See Cantu-Tzin v. Johnson, 162
F.3d 295, 298 (5th Cir. 1998); Pyles v. Morales, No. 396-CV-2838-
D (N.D. Tex. Dec 2, 1996).
2
Nelson moved for the appointment of federal habeas
counsel on September 17, 2002. However, the district court did not
appoint counsel until March 13, 2003, nearly six months after
Nelson had moved for the appointment and almost three months after
the expiration of AEDPA’s statute of limitations. Recognizing that
the limitations period had expired, on April 30, 2003, Nelson moved
for an extension of time until June 13, 2003, to file his federal
habeas petition. His motion requested that the court equitably
toll the limitations period for the time Nelson was without federal
habeas counsel. While that motion was pending, Nelson filed his
federal habeas petition on August 22, 2003, 162 days after the
appointment of counsel and 246 days after AEDPA’s limitations
period had expired.
Because the petition had already been filed, the district
court granted Nelson’s motion for an extension of time on
February 10, 2004, but declined to decide if the petition was
timely. Responding to the State’s motion to dismiss, the district
court dismissed Nelson’s habeas petition as time barred and sua
sponte denied COA on March 31, 2005. The district court denied
Nelson’s motion to alter or amend the judgment on March 31, 2006.
Nelson now appeals.
II. DISCUSSION
AEDPA requires Nelson to obtain a COA before he can
appeal to this court. 18 U.S.C. § 2253(c); Morris v. Dretke,
3
379 F.3d 199, 203 (5th Cir. 2004). To obtain a COA, Nelson must
make “a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). Where, as here, the district court rejects
a habeas petition on procedural grounds, “a COA should issue when
the prisoner shows, 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, 120 S. Ct. 1595,
1604 (2000) (emphasis added); see also Morris, 379 F.3d at 204.
It is undisputed that Nelson’s federal habeas petition
was untimely filed. However, the limitations period may be
equitably tolled “in rare and exceptional circumstances.” Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998). “[E]xtraordinary cir-
cumstances exist where a petitioner is misled by an affirmative,
but incorrect, representation of a district court on which he
relies to his detriment.” Cousin v. Lensing, 310 F.3d 843, 848
(5th Cir. 2002) (citing United States v. Patterson, 211 F.3d 927,
931-32 (5th Cir. 2000)).
Nelson argues that equitable tolling applies to the time
period during which he lacked federal habeas counsel because the
district court did not make the appointment until six months after
he made his request and after the limitations period had already
expired. However, this court has previously held that a
defendant’s pro se status will not excuse an untimely habeas
4
petition. See, e.g., United States v. Wynn, 292 F.3d 226, 230 (5th
Cir. 2002) (citing United States v. Flores, 981 F.2d 231, 236 (5th
Cir. 1993)); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000);
see also, Lookingbill v. Cockrell, 293 F.3d 256, 264 n.13 (5th Cir.
2002). The district court was correct to conclude that Nelson knew
about the impending deadline and could have filed a pro se skeletal
petition before the limitations period expired. See Lookingbill,
293 F.3d at 264.
Nelson claims that this case presents more extraordinary
circumstances warranting equitable tolling than did Prieto v.
Quarterman, 456 F.3d 511 (5th Cir. 2006). Prieto held that
equitable tolling was warranted where the district court misled the
prisoner by granting additional time to file his petition before
the limitations period had expired. Id. at 515. Nelson argues
that the district court’s extension of time in February 2004 misled
him into believing that his petition was due beyond the AEDPA
limitations period. The district court’s order could not have
misled Nelson, because it granted the extension well after the
limitations period had already expired. See Fierro v. Cockrell,
294 F.3d 674, 683 (5th Cir. 2002). The court did not mislead
Nelson into filing his petition outside the limitations period.
Nelson next contends that he was diligent in filing his
petition after counsel was appointed. See Cousin, 310 F.3d at 849
(equitable tolling requires petitioner to “pursue habeas relief
diligently”). The record, however, shows otherwise. After state
5
habeas relief was denied, ninety-eight days remained in the
limitations period. Nelson’s counsel was aware of the limitations
period because he moved to extend the filing date to June 13, 2003,
a date within ninety-eight days from his appointment. Yet he then
waited until 162 days after the appointment to file Nelson’s
federal petition. Cf. Prieto, 456 F.3d at 513.2 Therefore, even
if the district court had granted equitable tolling equivalent to
the time Nelson was without federal habeas counsel, his petition
would still have been untimely.3 Nelson’s complaint that he was
unable to prepare the petition in ninety-eight days is
unconvincing. See Fierro, 294 F.3d at 684; Ott v. Johnson,
192 F.3d 510, 514 (5th Cir. 1999). Nelson has failed to
demonstrate diligence in the preparation of his federal petition.
Alternatively, the State urges us to deny COA because
Nelson made no attempt in his brief to show that “jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right.” Slack, 529 U.S. at 484,
120 S. Ct. at 1604; see also Nixon v. Epps, 405 F.3d 318, 323 (5th
2
Counsel contends that to do a thorough job of preparing the
petition, he tried to secure appropriate records and expert help,
all of which took time, and he faced impediments by the court and
the State. Nevertheless, counsel could also have filed a
skeletal petition and sought leave to amend later.
3
Nelson does not argue in his brief to this court, as he did
to the district court, that equitable tolling applies to the
five-month period between the appointment of counsel in March
2003 and the filing of the petition in August 2003. Accordingly,
any such argument is waived. See United States v. Pompa,
434 F.3d 800, 806 n.4 (5th Cir. 2005).
6
Cir. 2005). The Supreme Court rejected this approach in Slack,
where the petitioner focused his arguments on the district court’s
procedural ruling and made no attempt to show the denial of a
constitutional right. See Slack, 529 U.S. at 485, 120 S. Ct. at
1604. Like the Supreme Court in Slack, which noted that a ruling
against the petitioner on the procedural issue would end the case,
we decline to address the sufficiency of Nelson’s constitutional
issues because “there is also present some other ground upon which
the case may be disposed of.” Id. (quoting Ashwander v. TVA,
297 U.S. 288, 347, 56 S. Ct. 466, 483 (1936) (Brandeis, J.,
concurring)).
III. CONCLUSION
Based on Lookingbill and this court’s settled authori-
ties, this case presents no “rare and exceptional circumstances”
that warrant equitable tolling, and jurists of reason would not
find the district court’s procedural ruling to be debatable. We
therefore DENY Nelson’s application for COA to appeal the district
court’s refusal to grant equitable tolling.
COA DENIED.
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