Felder v. Johnson

Heller, 492 n. at constitutional. U.S. the need (questioning 93 S.Ct. multiple purely film as copies

seize Books, evidence); Wayne Fort

cumulative quoting

489 U.S.

Heller, 413 93 S.Ct. 2789 U.S.

(“While copy of a book or film single evidentiary

may be and retained for seized probable

purposes finding

cause, publication not be taken until completely of circulation there

out obscenity af been determination Second, hearing.”). an adversarial

ter that it stated in an affidavit

Contreras

necessary large quantity seize each was under

evidence because item illegal

Texas law contraband. See also 97-2206, 97-2219, Cassilly,

Hicks v. (4th Cir.1998) (unpublished

WL that an officer was enti

opinion) (holding qualified immunity where more

tled 1,000

than items were seized from adult in a crimi preserve evidence

bookstore prior hear

nal case without adversarial

ing).

Therefore, Appellant has not shown a pre-seizure established to a

hearing.

AFFIRMED. FELDER,

Leslie Parnell Petitioner-

Appellant,

Gary Director, JOHNSON, De L. Texas Justice,

partment of Criminal Institu Division, Respondent-Appellee.

tional

No. 98-21050. Appeals, Court of

United States

Fifth Circuit.

Feb.

er”) was sentenced December 1987 to prison life in pleading guilty ag- after gravated robbery. Felder did not directly appeal his conviction and sentence. He subsequently filed applications for state 11, 1993, January habeas relief January on Felder, Huntsville, TX, Leslie Parnell 13, 1995, 11, February 1997. The first se. applications two were denied on the merits Sullivan, Austin, TX, Respon- Edwin 31, 10, on March April and on dent-Appellee. April The third was dismissed on for abuse of the writ. § petition

Felder filed instant July on Respon- 1997. On October KING, Judge, Before Chief dent petition filed a motion to dismiss the GARZA M. REYNALDO G. and EMILIO under GARZA, time-barred Judges. Anti-Terrorism Circuit Penalty Death Effective Act of 1996 KING, Judge: Chief (“AEDPA”), 104-132, Pub.L. No. 110 Stat. appeals Petitioner Leslie Parnell Felder (1996). In response, his Felder court’s of district dismissal his 28 he claimed that had not been aware of petition, arguing U.S.C. the AEDPA’s period limitations until after he in concluding court erred his was Respondent’s received motion to dismiss.1 argues his circum- time-barred. He granted Respondent’s The district court stances warrant Those motion to dismiss the as time- (1) circumstances include his incarceration 2244(d). correctly barred under not (2) date; before AEDPA’s effective his ed period imposed that the limitations (3) pro se; claiming litigating that he is April 24, AEDPA became effective on crime for innocent which he was 2244(d)(1) (1999) 1996. See U.S.C. (4) convicted; his alleged unawareness (providing period after (as state judicially becomes final to file feder interpreted) inadequacies due to of his al subject certain petition, except he claims prison’s library, which made the ions).2 granted have petitioners text throughout law’s inaccessible his one- year grace period. whose final Because we find these convictions became before that be period, circumstances to insufficient to effective grace date re equitable tolling, we affirm. quiring to file 2254 applica them their tions Flanagan 1997. See I. AND FACTS PROCEDURAL Johnson, n. Cir. BACKGROUND Flores, 1998); United States v. initially Having charged (announcing been capi- one- (“Feld- murder, year grace tal Leslie Parnell period Felder context Felder, se, proceeding pro specifi- did the claim that was unaware of AEDPA cally Response Respondent's state in library implicit inadequacies Motion to Dismiss that unaware he was Response. argued Felder's Felder also law library AEDPAbecause the Eastham Unit of AEDPA's limitations copy prior did not receive his case was unconstitutional. However, filing his federal in his affidavit refers attached to deficiencies AEDPA, 2. Prior to there was no statute of library. law He also refers in federal habeas claims. See Response to affidavits to his attached mo- Flanagan v. affidavits, requesting tion counsel. those Cir.1998). prisoners Johnny J.E. Meadows Harold Thus, library inadequacies. Tarter T. attest to deemed petition “may be noted that Felder’s petitions). The district court ninety-nine filed under under circumstances application was filed grace period. days the end of his consisting following”: after Feldér which was application, third state incarcerated before AEDPA’s effec- writ, pend- abuse of dismissed for (2) (3) date; se; pro litigating tive seventy-eight days. Even for he is innocent of crime claims “properly filed” under petition was deemed (4) convicted; was claims that he which he 2244(d)(2), § the stat- and therefore tolled requirements unaware of AEDPA’s was pendency, during ute of limitations (as judicially interpreted), and claims late.3 filed was lacked to the law’s text that he period. filed a motion for reconsideration during grace Felder motion, In that Felder of the dismissal. limi- argument

restated his II. DISCUSSION ap- as period was unconstitutional tations fell alleged that his case plied, and also brief, spe appellate reply In his Felder 2244(d)(1)(B). re- again under Felder cifically contends that Tarter Meadows affida- to the ferred AEDPA’s statute of limitations warrant that AED- vits claimed to shown have under the circumstances discussed ed PA until was not to him available None of the district the district court.5 expiration of September 1997-—after the case, nor any orders in this court’s period. his limitations prior filings, addressed 23, 1998, court “re- July On the district tolling. We note that the court did not re- motion for luctantly” denied Felder’s opinion have the benefit of our Davis appli- “interpret[ed] consideration. (5th Johnson, Cir.1998), cert. F.3d 806 only the one- cable authorities” allow — denied, U.S. -, Flores,4 year Howev- grace period, citing (1999).6 L.Ed.2d er, that “the the district concluded Davis, held, we a matter as of first grace under period lim- impression, that the Flores, supra, among is a debatable matter limitations, itations was a statute of jurists motion Construing of reason.” jurisdiction. not a bar See id. request as a for Cer- reconsideration limitations, (“COA”), 807. As statute of could be Appealability the dis- tificate of tolled, “rare and granted as to whether albeit trict court COA challenge” adequacy to the "rest[ed] 3. held a Texas state habe- We have since library the writ the law on the Tarter Meadows dismissed for abuse of affidavits, 2244(d)(2) explicitly "properly linked his filed” under library’s tolls the of limitations in AEDPA's to the in- therefore statute Johnson, not, however, 2244(d)(1). specifically Villegas adequacies. He did 1999). (5th Cir. F.3d 467 state that the statute of limitations should be equitably tolled. he cited to Easter v. Endell, (8th Cir.1994), a case 21, 1998, F.3d 1343 Flanagan, September 4. issued on involving question ap- whether it yet available. "equita- propriate for the court to exercise its procedural power a state ble look argues Respondent 5. Felder did that because proceed bar and to the merits a habeas in his brief the issue of not address initial corpus petition.” Id. at 1345. Given Felder’s knowledge his lack of of AEDPA's whether brief, statements in his initial and consider- equitable tolling, requirements warranted status, must, ing, we we do not See, e.g., Commu- has waived the issue. DSC of whether Felder's lack of consider issue Communications, Corp. v. Next Level nications waived. notice warrants Cir.1997) ("[A] 326 n. 2 107 F.3d party fails to raise an issue in its initial who that is- district court’s reconsideration order waives the to review of 6. The brief brief, sue.”). July on was is appellate initial was issued Davis In his granted, on which a COAwas sued October stated the issue 811; exceptional typical circumstances.”7 Id. at of those bringing a 2254 claim. Johnson, Flores, see also Fisher v. 174 F.3d United States v. Cf. (5th Cir.1999) (asserting Cir.1993) that courts status, (holding pro se “examine each case on its facts to must deafness, illiteracy, legal and lack of train- sufficiently it presents determine whether ing are not external factors excusing abuse jus exceptional ‘rare and circumstances’ to writ); Barrow v. New Orleans S.S. tify equitable tolling” (quoting 158 Ass’n, 811)). F.3d at have since provided (holding equitable tolling of limitations insight types additional into the of circum within the Age in Employ- Discrimination stances that be seen as rare and ment Act not warranted plaintiffs unfa- exceptional. In Coleman v. 184 miliarity legal process, his lack of (5th Cir.1999), example, F.3d 398 we representation, or of his le- “ ‘[ejquitable n stated that tolling applies gal rights). Felder’s actual innocence principally plaintiff actively where the claim also does not constitute a “rare and by misled the defendant about the cause of exceptional” circumstance, given that prevented action or is in some extraordi many prisoners they maintain are inno- ” nary way from asserting rights.’ Id. cent.8 (quoting at 402 Rashidi v. American Pres Felder has linked the fourth Lines, ident 96 F.3d Cir. fifth 1996)). arguing that he did undisputed if not have notice of AEDPA’s twenty-one days for at due to inadequacies prison’s of his law one-year grace period is unwar ranted, library. He contends that must without notice be dis requirements, AEDPA’s untimely. missed he was denied opportunity timely to file his In our Davis and other Because Felder clearly filed his jurisprudence, enumer becoming before aware of AEDPA’s re ated in granting district court quirements, his unawareness the law COA are insufficient to warrant arguably has “prevented not in some ex equitable tolling. We have held that a traordinary way asserting rights.” [his] petitioner’s AED- prior incarceration to Coleman, 184 F.3d 402.9 passage present PA’s not an does extraor Fisher, In rejected petitioner’s we dinary warranting equitable circumstance (not claim that he was entitled to See 174 F.3d at 714 forty-three day period for the grace period be- affected tween AEDPA’s prisoners, hundreds of none of effective date and the date). whom of it on which learned on its effective date he received actual notice of Likewise, proceeding pro AEDPA. at 714. gave se is not a “rare See 174 F.3d We decision, circumstance is number of for our includ- reasons petitioner’s filing 7. appear In was well would also to make grace period by Flanagan. after the 2244(d)(1)(B) allowed unavailable to Felder. Under 2244(d)(1) holding In a statute 2244(d)(1)(B), period begins the limitation tolled, limitations that be could impediment to run on date "the on which the distinguish Davis did not between the one- filing to created State action year AEDPA limitations and the one- in violation of the Constitution laws of the year grace period granted Flanagan prison- to removed, applicant United State if the ers, Felder, like whose convictions became prevented filing by from such State action.” final before AEDPA’seffective date. See 158 Gilmore, Morgan United States ex rel. Cf. F.Supp.2d ("Even (N.D.Ill.1998) court assumes that the lock-down consti showing Felder has not made a of actual action, prevent Morgan tutes state it did not innocence, district court noted. ”). filing application.' 'an filing petition prior September 9. His alleges the lime he he had 2244(d) law, §in “ignorance guage support fact that our similar

ing the pro petitioner, for an se conclusion in this case. even incarcerated filing.” excuse generally prompt does not defining statute of limi- support we cited reasoning, Id. To this 2244(d), §in Congress explicitly tations holding prior decisions of laid out three circumstances under which ignorance of the law or lack of mere begin the statute of limitations would jus knowledge of does not filing deadlines prisoner’s run after the date on which the tify exceptions or other became final. n. requirements. at 714 a law’s See id. (D). (C), 2244(d)(1)(B), §§ previ- haveWe Collins, (citing Saahir v. ously Congress provide noted that did (5th Cir.1992) that neither (holding 118-19 based on failure to receive status nor prisoner’s notice. See failing the law constitutes “cause” for (“Congress knew AEDPA affect in- would prior in a petition), include claim carcerated individuals with limited access Ass’n, Barrow New Orleans S.S. information, yet pro- to outside it failed (holding delays any tolling possible vide knowledge filing “lack of deadlines” notice.”). Although we Davis effect not justify equitable tolling)). does suggested that circumstances just easily could have to other cited by Congress may those warrant indicated “ignorance cases for the of the law is same equitable tolling, we must nonetheless be See, Quina v. proposition. e.g., no excuse” Congress mindful of the framework estab- Fiberglas F.2d Owens-Corning Corp., 575 2244(d). §in 174 lished F.3d Cf. (5th Cir.1978); 1115, 1118 v. Sun Howard Supreme that “the (noting Court Cir.1968). Co., 596, Oil 404 F.2d 601 expressed rules deference to the that habeas”). in Fisher language appear Congress concerning Other would fashioned (D) 2244(d)(1)(B), (C), §§ support Viewing to lend argument that warrant toll- providing Congress’ description, of “ex- (“In circumstances,” traordinary 174 F.3d at ing. Taliani v. cf. circumstances, Chrans, 597, receiving delay 2244(d)(1)(D), § information call for toll- of (noting existence ing as if the not obtain is an “equitable-tolling did which described as —such of copies provision,” months and of other express tolling ”). dicta, 2244(d)), language provisions suggests months.... This of that we however, and we need not it.- follow More- should not unless toll the circumstances over, in par addition to our line of cases long presented particular in a ease are on 2244(d). that holding ignorance mere of the law or with the conditions listed of statutes of limitations is par- insufficient None law, we have lan- tolling,10 Congress’ ticularly warrant not can ignorance of the 10. Our that conclusion Felder’s unawareness awareness of AEDPA's enactment until he en prison system of AEDPA’s tered the insufficient federal stating with is also consistent claim “such run-of-the-mill ignorance determinations of other courts that have faced law is insufficient to warrant See, Marr, e.g., equitable tolling,” citing similar claims. Miller v. our decision in Fish (10th Cir.) (holding support); Angelone, er in Bilodeau v. (E.D.Va.) (conclud prisoner claiming F.Supp.2d not warranted 659 n. 1 law, ing ignorance lacked access to and case federal statutes law does not war tolling), appeal learned of AEDPA’stime limitations rant dismissed denied, 29, 1997), (4th Cir.1999); States, Fadayiro sometime after cert. v. United -, (D.N.J.1998) (“That F.Supp.2d U.S. - (1998); Griffin, Fadayiro L.Ed.2d 173 United States v. have been the new unaware of (N.D.Ill.1999) (declin F.Supp.2d of Section 2255 also not limitations.”). petitioner’s to toll lack of sufficient to toll statute tion, judicial par becoming said to be on a with those condi- be rule. Such tions. broad Congress, decisions are for ty.”).

That of the law is insufficient fact,

is, supported by language 2244(d)(2). tolling provision, In that III. CONCLUSION time Congress provided during “the reasons, For the above the district properly which a filed for State petitioner’s court’s dismissal claim is post-conviction or other collateral review AFFIRMED. pertinent respect with to the pending claim is shall not be counted to- GARZA, M. Judge, EMILIO Circuit any period

ward of limitation under this 2244(d)(2). dissenting: The “properly subsection.” Congress filed” limitation indicates that I agree petitioner does not view of the law as a incarceration, Leslie Parnell Felder’s tolling, “properly sufficient reason for status, and claim of actual innocence do filed” would one that was be filed not warrant equitable tolling of the Anti- any within statute of limitations the state Terrorism and Effective Death Penalty Villegas imposes. See (“AEDPA”) Act of 1996 statute of limita- (5th Cir.1999). tions. I agree do not with the are mindful of effect a dismissal deny decision equita- Felder’s claim for ability

will have on Felder’s to have his ble alleged ignorance based on his claims heard a federal court. This is which Felder has attributed to his first We are complete inaccessibility statute’s Supreme also mindful of the Court’s cau- him throughout his 2254 filing period. Thomas, tionary statements in Lonchar v. the Under the 324, 314, 1293, 134 U.S. 116 S.Ct. decision premature. is I therefore (1996) (“Dismissal L.Ed.2d 440 of a first respectfully dissent. particularly habeas is a serious claims he is entitled to matter, peti- for that dismissal denies the table of AEDPA the statute of limi- protections the tioner of the Great Writ tations he had no notice of AED- entirely, risking injury important to an Respondent’s PA until he received motion case, liberty.”). in human It interest is the directly to dismiss.1 Felder attributes however, the Felder’s circumstances are ignorance actual to the fact AED- that the clearly not among excep- those “rare and PA was not available from the Eastham tional” conditions that warrant deviation library until September Unit 1997—seven- express Congress from both the rules enactment, teen months after AEDPA’s and the provided grace-period we have and several months after the of expiration already granted prisoners whose convic- grace period filing for his tions were final before AEDPA’s effective petition. Flanagan, 154 F.3d at 200 n. date. To hold otherwise would character- supporting 2. Felder has submitted affida- ize as “rare and exceptional” circum- testimony vit from other prisoners other Eastham Unit stances countless AEDPA alleging could claim as inmates also that the their own. Cf. (“[T]he September F.3d at 715 unavailable until 1997. Feld- concept same would equally many own affidavit apply prisoners specifically other and er’s attests delayed different variations of informa- had Felder known of he would notes, prior majority period. 1. As the to AEDPA's See 28 U.S.C. 2244(d)(1) (1999) (providing peri- 1996 effective date there was no statute of final limitations on od after slate court becomes Johnson, Flanagan petition, subject certain claims. See file federal habeas (5th 1998). imposed exceptions). Cir. a — denied, Cir.1998), his within the cert. U.S. have filed period.2 -, L.Ed.2d one-year grace appropriate in (equitable tolling majority on an evalua- The relies neither circumstances” exceptional “rare credibility claims tion of the of Felder’s Coleman, it); equity where demands particu- factual nor on other (equitable tolling is limited to F.3d a this case.3 it sets forth lar to is misled plaintiff circumstances where the ignorance rule that actual of blanket “prevented some extraor defendant period, if attrib- AEDPA limitations even rights”); dinary way asserting from newly-enacted com- the statute’s utable to Ct., v. United Dist. inmates, Calderon States plete unavailability to can never (equitable toll for I believe be a basis “extraordinary appropriate rule is is if cir that this new not consistent beyond purposes prisoner’s cumstances control” period. sup- AEDPA limitations Nor is it prevent petition). filing ported by the available case law. unavailability newly-enacted The prisoner AEDPA to a is an external factor ig is to note that The correct beyond his control. Given that AEDPA of the law not itself a basis norance a statute limitations on imposed limitations, equitable tolling of statute of time, filing petitions of 2254 for the first See, prisoners. e.g., even for Fisher if statute was completely unavailable Johnson, Cir. during prisoner’s filing entire 1999). But Felder’s claim is not based petition, prevent § 2254 him merely ignorance of the law. timely filing from Such a allegedly on an the law based indeed, result would must be—“ex prison’s access to created denial of be— 4 I traordinary.” therefore do believe AEDPA for after its seventeen months we can rule Equitable appropri establish blanket enactment. newly-enacted factor actual extraordinary ate when limitations, plaintiffs prevents filing control on AEDPA statute of even re prison’s Davis v. sulting time. See failure to allow brief, appellate Respondent "petitioner, had the indicates that the exercise provide opportunity contradicting diligence, evidence reasonable should have known of allegations. entirely to do He failed Appeals' the Court of decision at an earlier so. date”). suggest diligence in 3. Our cases that Felder's disagree with 4.I the contention pursuing claims after his final that such cannot be "rare might state habeas was dismissed im- exceptional” prison- because "countless other equitable pact tolling claim. See Coleman Empir- claim ers could as their own.” [them] (5th Cir.1999). v. ically, complete I believe that the denial of diligence obtaining the statute Felder's newly-enacted pe- access to the for a AEDPA question; only by another relevant factual greater than is "rare riod twelve months showing diligence such can Felder show that exceptional.” Legally, denial’s such a actual- 1) his lack of access to either ly leading to the of a first dismissal 2) actually or his control caused his petition as must be “rare time-barred file failure light of the Constitution. See Greiner, Vasquez F.Supp.2d v. 343, 351, Casey, Lewis 518 U.S. 116 S.Ct. (S.D.N.Y.1999) (refusing for to dismiss claim (to 135 L.Ed.2d 606 show tolling appellate attorney's equitable based on violation of constitutional of access to alleged petitioner failure of the inform courts, show, prisoner example, "might a for appeal; Appeals' direct Court denial of his complaint prepared a was dismissed equitable noting tolling might prove but require- satisfy for failure some technical "unwarranted on all the facts and circum- which, if, stances,” 1) ment because of deficiencies the hearing, as the such after a facilities, legal prove prison’s petitioner’s claims assistance he could incredible in evidence; known”). 2) weight of the the evidence not have the equitable tolling-such a for petitioner’s statute for en- as the the grounds can did not filing period, copies tire never be obtain of AEDPA for months and months.” Id. Adding that this here,” “was not the case we found that rule Adopting such an overbroad also “Fisher has not shown a rare and excep- equitable nature comport fails to with equity tional circumstance that calls for remedy. equitable “The doctrine intervene.” Id. plaintiffs claims when tolling preserves limita- strict of the statute of The “months and months” statement Davis, inequitable.” tions would be suggests Fisher is dicta. But it that the discretionary “As a doctrine Fisher court not considered that the that turns on the facts and circumstances arise, question before us would but case, particular equitable tolling does have reached a different outcome from the bright-line not lend itself to rules.” Fish- majority importantly, here. More er, at 713. “we and statement —and the entire discussion of court must examine each case on district equity whether “call[s] these presents facts to whether it determine explicitly suggestion refutes facts”— sufficiently exceptional’ ‘rare and circum- that Fisher intended to a bright- establish justify tolling.” stances to Id. ignorance line rule that actual of AEDPA 811). F.3d at The need (citing resulting from a denial of access to the equitable precepts adhere to these statute can never abe basis for heightened because “dismissal of a first rule, In its disavowal of such a particularly is a serious this section is consistent with the Fisher matter,” Thomas, Lonchar v. 517 U.S. whole, opinion continually which em- 1293, 1299, 134 L.Ed.2d 440 phasizes equitable tolling, as an (1996), subject challenge. to constitutional remedy, hinges table on the facts of a particular (stating case. See id. at 712 that has acknowledged pos- No court doctrine, discretionary as a sibility equitable tolling held that rules); bright-line is unsuited to id. resulting actual newly- (noting from the denial of access to the each case must be statute, can if equitable enacted never be a basis for examined on its facts to see warranted); equitable tolling. Only two (holding of the cases id. at claim, cited that equity address such does not entail on these facts). Therefore, opposed admittedly claims while Fisher claim, of the law dispositive alone. is not of Felder’s I find it only published Those cases—the cases ad- rule inconsistent the broad estab- dressing by majority. the issue—are Fisher and Miller lished Marr, (10th Cir.1998). majori- support Miller also fails to rejected petitioner’s ty’s we rule. While Miller court was not claim, claim for equitable tolling presented equitable tolling based on the with an forty-three day delay deciding between AEDPA’s it did note in that the AEDPA effective and the period date the date statute limitations did not violate the Sus- Fisher, prison library. pension arrived in that equitable tolling the Clause “equity F.3d at 714. concluded that possible, We and declined to toll for Miller, simply does not call for on these Miller. See 141 F.3d at 978. Mil- learning prison facts. Even after ler that his li- apparently claimed period, days brary’s Fisher had to of access to “all denial relevant complete That statutes case law” until enough impossible more than time.” at 715. it fill out his Id. both rendered to noted, circumstances, petition ignorant then “In the him left in delay receiving analysis information call AEDPA. Id. The court’s brief at 714. The seventeen- not state equitable tolling issue did the is, its delay alleged by of AEDPA month that a claim of actual face, likely text far to be a “rare and resulting from a denial of access more a basis for Unlike the de- could never be circumstance. Instead, rely on certain appeared lay prejudicial, it in it is also particular; susceptible equitable “individual circumstances”—in intervention. thus provided specificity true, no grace that “Miller allegations If Felder’s are regarding alleged the lack of access time he expired by had the learned steps diligently pursue he took to Thus, the fact of the time limit. relied Lewis, (citing claims.” Id. federal finding court in that upon by the Fisher 2179).5 349-350, 116 U.S. at S.Ct. Sub call for on these “equity does not not read sequent Tenth Circuit cases have here. See id. at 715 apply facts” would Miller to establish the rule the (“Even learning after of AEDPA’s limita- adopts today.6 days had to com- period, tions Fisher petition.”). Applying plete his adopt Having declined to standard, allegations are Fisher rule, bright-line I find it premature true, equity might tolling” “call for here. record, any factual decide this case without dicta, The Fisher “months and months” unique pres- in circumstances light of id., merely confirms that Felder’s different ent. circumstances a different re- signifi- The here differ sult. in for- cantly from those Fisher. Fisher’s Likewise, day apparently the circumstances ty-three delay receiving notice of exist, was, noted, upon as we “not rare.” relied Miller do not here. Felder, equitable apparently Miller of the law does not warrant Unlike claimed norance conspicuously the denial of access to all texts both See id. The court precluded completing rely him failed to on such an ironclad rule in petition actually ignorant disposing Bradley’s and left him third claim. AEDPA. See id. The Tenth Circuit did not conclusory allegation "Bradley’s held that separately analyze Miller’s two claims. See prison library inadequate facilities are Seemingly referring impossibility id. justify tolling.” also insufficient argument, the court noted two other relevant (citing Id. to Miller's statement that 1) unexplained circumstances: Miller’s fail- is unwarranted where inmate has diligently pursue ure to his federal claims— allegations). "provided specificity” no in his petition post-conviction Miller’s sole state Likewise, Rodriquez Klinger, WL relief was denied in October and he Cir., 1999) (unpub- June admittedly had full relevant texts lished), Rodriquez sought equitable tolling be- January yet until he did not file his provide cause the warden "failed to 1997; 2) July until the simi- copy at 1. him a Id. The Tenth AEDPA-” between larities Miller’s 2254 claims and Circuit noted that the district court had held appeal postcon- those in his direct and state Rodriquez was not entitled to viction motion. See id. These insufficiently diligent latter, refuting particularly while particular, pursuing his Id. claims. In complet- Miller's claim that he could not have finding emphasized the district court's ed his federal without additional re- access, Rodriquez requested copy had never relevant search do not seem to his though even he had access to an actual claimed of AEDPA. inmate research assistant who could have provided necessary information. See id. Bradley Poppel, In WL findings, emphasizing these Cir., 2, 1999) Bradley (unpublished), Nov. record, closely that it had reviewed the entire 1) claimed the una- the Tenth Circuit affirmed the denial of vailability of trained law clerks to assist him defense; 2) law; table with Miller, appear rely both to 3) Like cases inadequate library. and an law See id. at opinion circumstances. rejected Bradley's individual Neither *2. The court first and sec- having consistent with Miller's established a ond claims with reference to established rules, legal noting right that there is to rule that based on a denial of no proceedings ig- counsel in collateral and that access to AEDPAcan never exist. See, post-conviction petition final determination. e.g., Felder’s state that, three at 715 (stating depends was dismissed as it on indi- he filed his vidual months before facts and decision importantly, allegations are More whether toll is “left to the dis- merely general conclusory. Feld- trict not court’s discretion” and is reviewed for discretion). specifically alleged er failure has abuse of that limit comply to with AEDPA’s time result- expressing any opinion Without as to its unavailability from the to ed statute’s merit, I would therefore remand for the until September Eastham Unit inmates district court to assess Felder’s equitable presented affidavit testimo- time, tolling claim for the first conducting ny supporting specific this allegation. Re- fact-finding necessary such as it finds spondent given opportunity to re- 1) determine whether Felder can establish allegations entirely but these and failed to that his factual allegations including ac- — ap- do so. Each of these circumstances tual ignorance of until September pears to differ Miller. resulting unavailability from its I therefore cannot decide at stage, true; 2) Eastham Unit inmates —are law, as a matter of circum- so, whether Felder’s circumstances as a exceptional,” not stances are “rare and whole are the “rare and cir- Davis, 158 at Nor can 811. I decide cumstances, 158 F.3d at certainty “inequitable” that it is not equity compels which us to toll the AED- days. at twenty-one decline to toll for As, PA statute of light limitations. (noting Id. at that equitable this- court’s I jurisprudence, find the ma- warranted when “strict of the jority’s election to instead decide this case inequita- statute of limitations would be on legal grounds premature, and the rule ble”); also 174 F.3d at see overly sweeping, it establishes I dissent. that, in (citing noting Lonchar and importance right bring a first petition, “we must be cautious not apply the statute of limitations too Lewis,

harshly”); 518 U.S. cf. America, UNITED STATES of (stating S.Ct. to show viola- Plaintiff-Appellee, tion of constitutional of access to show, courts, prisoner “might for exam- ple, complaint prepared that a he dis- RICHARDS, Latrasse, Al Kurt satisfy missed for failure to some technical Roger Braugh, Defendants- which, requirement because of deficiencies Appellants. facilities, prison’s legal assistance known”). Any not could have such deter- No. 98-20441. is premature.

mination of Appeals, United States Court discusses, As the Felder has Fifth Circuit. the opportunity present had equitable tolling claim to the district court. Feb. inability

The district court’s to consider Rehearing En Rehearing and Banc the issue means that there has been no Denied March factual whatsoever. To de- development termine whether Felder’s circumstances equitable tolling, necessary it is veracity

both to assess the of Felder’s develop

assertions factual other legal

circumstances that bear on this

Case Details

Case Name: Felder v. Johnson

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 10, 2000

Citation: 204 F.3d 168

Docket Number: 98-21050

Court Abbreviation: 5th Cir.