*4 SMITH, Before BENAVIDES and sent a to the presiding letter DENNIS, Judges. Circuit judge indicating of the district court had denied motion for recon- SMITH, E. Judge:
JERRY
Circuit
sideration
written order. The let-
without
Robert
the dismiss-
ter was filed in the district court on De-
appeals
al,
21,1998.
limi-
one-year
under the
cember
time-barred
2244(d)(1) provides:
1-year pe-
1. Section
"A
tion under
subsection.” See Duncan v.
this
173-76,
Walker,
apply
application
riod
limitation shall
to an
U.S.
121 S.Ct.
corpus by
person
for a writ of habeas
(2001).
custody pursuant
judgment
to the
of a State
2244(d)(2) provides
court....”
Section
Although Lookingbill
claims he filed the
exception:
proper-
which a
“The time
12, 1998,
March
motion to reconsider on
ly
post-convic.lion
filed
for State
16, which
motion was notarized on March
respect
or other collateral review with
to the
the earliest date on which the
therefore is
pertinent judgment
or claims is
shall
motion could have been filed.
any period of
not be counted toward
limita-
however,
2, 1999,
parties
stipulated,
February
LookingbiU filed
The
On
period began
AEDPA limitations
his motion to that the
support
an affidavit in
22, 1996,
IFP;
when Look
foUowingday, the feder-
to run on November
proceed
status,
appointed state habeas couns
ap-
ingbUl
IFP
was
granted
al district court
counsel,
el,3
and that the limitations
ran
grant-
pointed federal habeas
appointment of state
from the
stay
ed a
of execution.
of the state
habeas counsel to the
LookingbiU
petition
filed a
for federal
petition.
The limitations
July
corpus
on
writ of
21, 1997,
April
when
was tolled between
summary judgment,
moved for
petition,
LookingbiU filed his state habeas
petition
was time-
averring
the federal
and March
when the Court of
2244(d).
LookingbUl as-
barred under
Appeals denied the state habeas
timely
serted that
petition.
LookingbiU
Because
filed his
not,
that,
equitable
even if it was'
23, 1999,
July
federal habeas
toUing excused him. The district court
2244(d)
untimely
under
unless
summary judgment,
granted
then
entered
periods was further toUed.
appealabiUty
LookingbUl a certificate of
*5
(“COA”)
toUing
LookingbUl argues
on the limitations and
is-
that
two additional
running
events should have tolled the
sues.
limitations. The first was his
the
of his
motion to reconsider
denial
state
II.
petition; the
was his motion
habeas
second
LookingbUl argues that the dis
appointment of federal
habeas counsel.
in holding
trict court erred
that his federal
AED-
petition
habeas
was not filed within
A.
one-year
period.
re
PA’s
limitations
We
LookingbUl
de
the
of a federal habeas
claims that the mo
view novo
denial
grounds.
to reconsider the denial of
state
petition
procedural
Emerson
tion
his
(5th
Johnson,
931,
petition
“properly
apph
v.
243 F.3d
habeas
was a
filed
Cir.
2001);
Cain,
489,
post-conviction or
Johnson v.
215 F.3d
494 cation for state
other
(5th Cir.2000). The AEDPA
coUateral review” that
tolled the limita
statute
applies
petitions
limitations
to all habeas
tions
from the date he filed the
April
filed after the Act’s effective date:
motion to reconsider the denial
Johnson,
1996.
v.
habeas
1998. This
Kiser
163 F.3d
relief December
(5th Cir.1999).
circuit,
most,
properly
Uke
holds that “a
LookingbUl’s
murder
April
application
according
final
submitted
conviction became
before
filed
is one
Thus,
procedural
toUing,
require
1996.
absent
he had
the
state’s
”
Johnson,
24, 1997,
April
Villegas
an
....
v.
application
until
to file
ments
184 F.3d
(5th Cir.1999)
Ward,
v.
v.
(quoting
federal habeas rehef. Smith
Lovasz
(3d Cir.1998)).
Cir.2000);
Vaughn,
Flana
134 F.3d
Johnson,
gan
interpret
“properly
v.
154 F.3d
200-02
We
the words
filed”
Cir.1998).
Cain,
narrowly. Williams v.
217 F.3d
Morales,
396-CV-2838-D,
2244(d)
Pyles
peri-
v.
No.
der 28 U.S.C.
is tolled for the
(N.D.Tex.
ap-
U.S.
at *3
of time
the date of the actual
[until]
Dist. LEXIS
od
2, 1996),
Attorney
pointment
Dec.
of counsel
Court of
the Texas
General's
the
that,
agreed
Appeals.” Accordingly, Lookingbill’s
office
death-sentenced
one-
"each
year
began
who
not filed a state
limitations
to run on No-
individual
has
petition,
the statute of limitations un-
vember
lasts
“The
ideration.4
Cir.2000);
Villegas,
4n.
take to resolve
Texas courts
overly
as the
long
an
(“[W]e
not assume
ought
at
(internal
suggestion
reconsidera
motion or
filed.”
the
properly
meaning of
broad
Thus,
omitted)).
prop-
Id.
marks
quotation
tion.”
proce-
meet all
must
erly
had filed their briefs
parties
the
After
Galindo
requirements.
dural
matter,
Melancon
decided
instant
we
the
(W.D.Tex.1998). If
697, 701
F.Supp.2d
(5th Cir.2001), hold-
there running not start that the clock should ing fits petition requirement, cedural trial of the state date again between prop- exception, within peti- a state habeas disposition of court’s Smith, at filed. erly filing for timely petitioner’s tion and Tex.R.App. P., 79.2(d), plainly Rule at 406. level. Id. at the next direct review for rehear filing of motions prohibits Melan- under Emerson Accordingly, for rehear “A motion cases: ing in habeas con, reconsider Lookingbill’s corpus that denies ing order running of tolled Procedure, of Criminal under Code relief 16,1998. 4 to December March 11.071, not be filed.” may articles 11.07 brief,5 Looking- supplemental letter In a its Nonetheless, may on “[t]he Id. should court that the district argues bill Id. case.” reconsider own initiative period until the limitations have tolled rule, district Relying on court filed the state district day after “insuffi this discretion reasoned If we letter.6 Appeals’ Court of prop cient make December until the deadline tolled correct judgment That filed.” erly *6 timely. be would Lookmgbill’s COA when the precedent Circuit under Fifth opinion. wrote district court 2244(d)(2) for the time limit tolls Section “pending.” are applications court issued After the district Emerson, 2244(d)(2). In U.S..C. Emerson, however, decided we opinion, its long a how we considered F.3d at of Artuz reasoning which followed tolls AEDPA’s for reconsideration 361, 148 Bennett, 121 S.Ct. U.S. 2244(d)(2). held We under time limit that, (2000), “given held long as as the only “tolling lasts allowing habeas case and Texas law Artuz sug- motion or to take resolve courts or motions suggestions file petitioners limited Our for reconsideration.” gestion reconsideration, one-year AEDPA’s for about concern reflected serious holding during the tolled statute recon- for motions the deadline for petitioner a Texas habeas period which Court of with the Criminal filed sideration at 935. Id. a motion.” has such filing and a timeline absent Appeals; three Court cited in Emerson court reconsideration, motions deciding in which a Texas Appeals cases indefinitely. toll time limit could AEDPA’s for recons a motion had entertained argue that he failed (Tex.Crim. 6.Lookingbill does not Lemke, parte S.W.3d 4. Ex of Criminal Smith, the Court notice of actual receive 977 S.W.2d parte App.2000); Ex Graham, filing in state after Appeals' decision until parte Ex (Tex.Crim.App.1998); Ap- of Criminal The Court court. (Tex.Crim.App.1993). district S.W.2d 565 LookingbilTs counsel ruling listed peals’ letter copy was whom parties to as one letter parties submit briefs 5. We asked circulated. impact of addressing the Melancon. The Court of Criminal Appeals “re interpret Federal courts the federal time running solve[d]” the motion as soon as it the event decided de scribed rather than from receipt of notice.9 and issued the December 16 letter. Fil example, For Spencer Sutton, ing the letter ruling with the trial court did Cir.2001), the court nothing to advance or dispose of Looking- reversed a district court for tolling under case; bill’s the motion for reconsideration AEDPA petitioner where the only had one did not “pend” continue to between the day after the state’s actual denial to file a Appeals’ Court of Criminal ruling and the petition, reasoning that AEDPA’s filing the letter. Further tolling would one-year period suffices, even considering not encourage Lookingbill diligently to ex the time it takes for notice to travel remedies; haust state after the Court of through the mails. Id. decision, Criminal Appeals’ he had nothing point does other left to do in state court.7 Requiring the provision of state argue law to that his Court of to take further is pending. This makes steps after its ruling would frustrate good provision sense. No other of Texas our attempt in Emerson to cabin the toll applies; law Texas law bars the mo- ing period. Tex.R.App. tion we are considering. P. 79.2(d). Emerson, 243 F.3d at we Lookingbill argues that we should apply agreed toll the AEDPA be- deadline Texas’s “mailbox rule” to toll limitations cause of Criminal Appeals had three past when the letter was considered motions for reconsidera- fact First, mailed. even if we tolled the dead tion. line for days, three Lookingbill’s COA Trying, dissent, as does the to graft the untimely. Second, would be although we generic criminal, civil, Texas rules of are sensitive to state law when determin appellate procedure onto a discretionary ing whether motion is still “pending,” motion that Texas courts consistently re federal law still determines the time limits fuse to recognize would quite be challengi under AEDPA.8 ng.10 Despite opportunities several *7 7. provides case an excellent ex- 200-01 (applying Fed.R.Civ.P. 6's timetables, ample. filing After his motion for reconsider- 2244(d)(2)). law, rather than state to ation with the Texas Court of Ap- Criminal peals, he had possible no other state remedy. E.g., Cruises, 9. Inc., Halicki v. La. Casino 151 waiting Rather than for the court to rule on a (5th Cir.1998) F.3d 467 (refusing apply to motion, technically forbidden which the court R.App. ailbox rule” to Fed. P. 4's time m limits, obligation had no partic- consider within a begin which filing with the judg of a frame, ular time Lookingbill filed his federal order); ment or v. Strachan Shipping Lauzon petition. habeas No seriously one can Co., con- Cir.1985) F.2d (re that tend that reason untimely the for the fusing apply mailbox rule to under filing was that he waiting for the Court of Longshore and Compensa Harbor Workers' to rule on the motion for order). tion Act filing that ran from of reconsideration. Beyond 10. forbidding the motion for recon- Artuz, 8-9, 531 U.S. at (giving sideration, S.Ct. 361 Texas state simply laws and rules 2242(d)(2) language §of priority over state regulate fail Analogous it. state law law determining when whether motion is sources as varied regulating as those review "properly courts); Emerson, filed” in state by the Appeals, of Court Criminal Tex.Code of 243 F.3d at (focusing 934-35 11.017; on whether mo- Crim. P. art. the issuance of the man- practically tion was pending date, Tex.R.App. per- rather than 18.1; P. filing of the man- law); mitted Flanagan, date; Tex.R.App. 18.6; 154 F.3d at post-conviction P. ap- May tolled limitations counsel not habeas did Lookingbill briefing, supplemental motion, to Febru that date of arguments law the state any of raise deadline appointed federal 3,1999, he was makes when ary the dissent cases December He cites numerous past counsel. habeas right of the importance demonstrating the to brief fails petitioner habeas aWhere however, not, cited He has to counsel. it we consider adequately, argument of appointment motion for in which a unwise to case especially thinkWe waived.11 pe habeas of limitations. “[A] rules tolled counsel Texas statutes interpret dissent, with for a after a petition identified tition is procedure relying while briefing, filed.” corpus itself is the benefit of of out writ and rules. of the statutes Cain, the text only on F.3d v. Williams a rules to statutes apply those (internal Then omit Cir.1997) marks quotation for expressly rules the Texas that ted). Thus, federal habeas recog beyond law mangling bid risks appointment a motion petition of—not nition. Looking- limitations.12 counsel—tolls of federal appointment us to estab- requires motion for precedent bill’s
Circuit limitations, corresponds to so rule that not toll bright-line counsel did lish Appeals actu- under the Court of when was time-barred federal his for reconsider- the motion disposed of 2244(d). ally raised arguments on Based
ation. court did that the appeal, we conclude this III. 16,1998. of December in its letter so equitable Lookingbill argues mo- court denied the state Because AEDPA’s him from tolling should excuse date, the on that for reconsideration tion review period. We one-year limitations July on days expired remaining 215 “abuse tolling only for equitable on denial filed his Lookingbill Johnson, F.3d late. Molo it four discretion.” making July (5th Cir.2000); solely Fisher based Thus, argue, he cannot (5th Cir.1999), cert. de Emerson, federal habeas his 1124, 148 timely filed. nied, S.Ct. 531 U.S. (2001). B. period AEDPA’s though, argues, is not tolling and subject equitable appointment motion for his Cir.1999) ("Because 73; 181 n. 3 P. corpus, Tex.R.App. for habeas plications *8 argued, we consider inadequately they are Ap- Court of Criminal judgments of Scott, waived.”); F.3d 55 East v. 78, these issues applied. might be P. peals, Tex.R.App. Cir.1995) (5th ("Because 996, East 8 1007 n. cases opining on when cases appeal, we arguments on does not brief these might also appeal pend direct on cease abandoned.”). Thomas, deem them E.g., Parte Ex persuasive force. have 286, (Tex.Crim.App.1997). 289 S.W.2d 953 2254(a); See, also see e.g., 28 U.S.C. conflicting the sources so parties found 889, French, F.Supp. 893 Moseley 961 v. they that recom- marginally relevant ("Nor period (M.D.N.C.1997) is the limitation Texas Court to the certification mended for court petitioner’s because tolled we find of action Appeals, a course grounds counsel.”), other rev’d on appointed unnecessary. (4th Lee, 557 Taylor F.3d v. 186 sub nom. 1197, denied, Cir.1999), 120 695, 528 U.S. cert. Anderson, n. 711 230 F.3d v. Lockett (2000). 1262, Johnson, 117 146 L.Ed.2d Cir.2000); S.Ct. (5th 168 Trevino
jurisdictional
Johnson,
bar. Davis v.
158 ed him
filing
a
peti
federal habeas
(5th
806,
Cir.1998).
F.3d
Therefore,
tion. As the district
pointed out,
court
may
toll the
limitations
however,
in
Lookingbill
quite
aware of
“rare
exceptional
circumstances.” Id.
and could have filed
added).
(emphasis
Such circumstances
a pro se
skeletal
pen-
exist,
would
example,
if “the plaintiff
dency of his motion
appointment
actively
[was]
misled
the defendant
federal habeas counsel. He did not. Con
about the cause of
prevent
action or [was]
sequently, he cannot succeed on this
ed in some extraordinary way from
claim.14
assert
ing
rights.”
his
Johnson,
Coleman v.
Third, Lookingbill claims that we
Cir.1999)
(quoting Rash
apply
should
equitable tolling because his
Lines,
idi v. Am.
President
96 F.3d
federal habeas counsel was overburdened
(5th Cir.1996)). But,
“garden
vari
busy
docket.
argues
He
that failure
ety claim of
neglect” by
excusable
peti
provide
equitable tolling would violate
tioner does
support
not
equitable tolling.
Fifth, Sixth,
Eighth, and Fourteenth
Rashidi,
Dep’t Affairs, Veterans 498 U.S. Fifth precedent Circuit support this 111 S.Ct. (1990)). L.Ed.2d 435 claim. Additionally, as the district court
Lookingbill argues
out,
pointed
we
“operating under time con
grant
should
equitable tolling for four rea
straints on federal cases [is] not unusual.”
First,
sons.
he claims that
Thus,
he was unduly
we decline to apply equitable tolling
burdened by not having federal
just
habeas
a lawyer
because
busy.
Looking-
counsel appointed
until February
1999. bill’s federal habeas counsel had sufficient
Lookingbill, however, did not address this
time to file a federal
habeas
within
issue
his brief to the district court.
2244(d)
limits
by §
established
but did
That failure constitutes a waiver
app
not do so. Consequently, this claim fails.
Dowthitt v.
230 F.3d
eal.13
Most recently,
brief,
in his letter
Cir.2000),
n. 16
denied,
cert.
Lookingbill argues that
equita
we should
U.S.
121 S.Ct.
Second,
Lookingbill claims that
the deadline rather than
magnitude
on the
the lack of federal
prevent-
habeas counsel
of the tardiness.15 At the margins, all
assuming, arguendo,
Even
Lookingbill
filing
excuse for
an untimely federal habeas
fails,
did not
argument,
waive this
petition);
Flores,
because
United
States
cf.
the Texas
Code of Criminal
Procedure
Cir.1993)
does
(noting
pro
se
require
not
the state
any way
to assist
status
untimely
does
excuse an
filed feder-
petitioners
their
peti-
al
petition).
tions. See TEX. CODE CRIM. PROC. ANN.
15.Fisher,
174 F.3d at
(refusing
715-16
2(e) (Vernon 2000).
art.
11.071
to toll statute of limitations for
seventeen
provision
cites no
mandating that the state
despite prisoner’s
psychiatric
confinement in
*9
appoint him counsel for his
federal
materials);
ward
glasses
legal
without access to
or
action. Consequently, this claim lacks merit.
Johnson,
510,
v.
192 F.3d
513
Allison,
Ott
63, 74,
See Blackledge v.
431 U.S.
97
Cir.1999) (refusing equitable tolling
pe
where
(1977).
S.Ct.
ly filed’ when delivery its acceptance result, law leads to a different I must are in compliance with the applicable respectfully disagree. [state] laws and governing rules filings.”2 majority The asserts Similarly, this court and other federal cir did not raise of the following state law cuits have held that a state-court and, arguments therefore, for tolling these “is pending” “from the time it is first filed arguments are waived. This is incorrect. - until finally disposed of and appel- further In response to this question court’s wheth
late review is unavailable
partic
under the
er Texas Courts would
peti
decide that a
ular
procedures.”-3
state’s
application
tioner’s
does not cease
pend
Despite the
precedents
controlling
until the court of Criminal Appeals’ order
Supreme
court,
Court and this
majori-
denying the motion for reconsideration is
ty claims that
precedent
“[c]ircuit
requires
court,
the trial
Lookingbill’s coun
us to
establish
bright-line [federal com-
stated,
sel
“Texas Courts have held that a
mon
rule
corresponds
law]
to when
criminal case is pending' on
appeal
direct
the [Texas] Court of Criminal Appeals ac-
appeal-has
until the
been decided and the
tually disposed of the motion for reconsid-
state trial court receives and files the man
eration” rather than risk “mangling state
date
the Court of
Appeals.”
beyond
law
recognition.” Without further
As to
questions'
other
panel
raised
explanation,
majority
then concludes
concerning the term “pending,” Looking-
that, under
“bright
rule,
its
line”
the state
joined
bill
with the Attorney General in
motion for reconsideration was “actually
requesting that questions of
disposed
proce
of’ on the date inscribed on the
dural law be directed to
the Texas
appellate
clerk’s letter and that
Lookingbill’s application
the form of certi
therefore stopped
questions,
fied
a request
state court on that
majori
which the
date. Be-
ty
cause this court
denied as
lacks the authority
“unnecessary.”4
majori
or
jurisdiction to supersede
ty has
never informed
parties
state law
meaning
“pending”
2244(d)(2)
under
request
their
questions
certified
has
with its own ad hoc federal common
not,
law been denied. They have
therefore,
rule, and because I believe that a conscien-
received notice that
the court considers
tious reading and application of the state
arguments
these
waived and have not ex-
8,
2. Id. at
121 S.Ct.
1999).
361. Accord
v.
Mitchell,
Emerson
Bunney
Accord
v.
262 F.3d
931,
(5th
973,
243 F.3d
(9th
932-935
Cir.2001);
Cir
974
Kaylo,
Melancon v.
.2001).
(5th Cir.2001). Thus,
F.3d
259
406
"
pending,’
is
when it
Cain,
v.
Williams
actually
217 F.3d
being
310
considered
the trial or
Artuz,
court,
Cir.2000)(quoting
appellate
Bennett v.
199
but
F.3d
also during
‘gap’
be
(2d Cir.1999)),
120
affirmed
tween the
trial
disposition
other
court’s initial
grounds,
petitioner’s
531 U.S.
121
‘timely
S.Ct.
148
of a
”
(2000)(internal
213
quotations
Currie,
review at the
omit
next level.’
281 F.3d
ted);
Walker,
(citing
Melancon,
Hizbullahankhamon v.
at 266
quoting
255 F.3d
(2d Cir.2001)(same);
406).
F.3d
Currie
at
v. Mates
“That rule applies
appli
anz,
(1st
281 F.3d
Cir.2002)(same);
discretionary
cations for
review as well as to
Sternes,
Currie,
v.
appeals
right.”
Fernandez
F.3d
281 F.3d at 266
Cir.2000);
Meyers,
Swartz,
(citing
421;
v.
n. 7
Taylor,
Swartz
F.3d at
(3d Cir.2000)(same);
561;
Lee,
Barnett,
Taylor
Matesanz,5 “looked which legiti might b. petitioner a which avenues par a whether to determine mately utilize Procedure, Appellate Rules of Texas relief post-conviction for application ticular appeals’ a “court of that provides Rule 19.1 ” Look- “supports and which ‘pending’ was expires judgment its power over plenary long as there as that contention ingbill’s all overrules the court days after ... 80 Mr. Look- open to any review ] [sic were rehearing and mo- for timely filed motions ‘pending’ was application the ingbill[,] motion.” to file a time to extend tions AEDPA.” of the purposes for a civil provides “[i]n further Rule 19.2 plenary retains
case, appeals of the judgment modify its or to vacate power in 19.1 even prescribed periods the governing meaning of the the Applying review for a has filed party if a appli law, Lookmgbill’s procedural Texas Thus, it is evident Supreme Court.” the review was post-conviction for state cation of Crimi- law the Court Texas that under notice until written at least “pending” plenary power and Appeals retained nal Decem court on district the state filed in for Lookingbill’s of jurisdiction denial of the final announcing 21, 1998 ber timely mo- his it overruled after by that rehearing motion petitioner’s If rehearing. tion majority has rec theAs court. appellate the December overruled was tolled period if the ognized, applica- concludes, Lookingbill’s majority be would “Lookingbill’s COA long, this jurisdic- pending within tion remained reasons are several There timely.”6 of the Court power plenary tion and the mean conclusion under this reaching 15, 1999. January until Appeals law. governing ing tolled a suf- statute was Consequently, Looking- to make time amount of ficient a. timely. application herein bill’s federal Appeals is of Criminal Court The Texas appli all review expeditiously required c. and, corpus, of habeas for writ cations court that appellate clerk The record, judg its enter reviewing the after a mandate must issue judgment custody, renders applicant remanding the ment and send judgment with release, in accordance as the applicant’s ordering or is to which it the court clerk justify.7 record may facts law and exp applicable when the directed only a review contains for our presented and the Supreme Court denies simply which order judge single ires.8 applicable Appeals, of Criminal Because the application. has time days after “[t]en has not Texas Criminal Court extend time a motion to expired Looking- remanding judgment rendered 11.071(11). Proc. Art. Cir.2002). Crim. 7. Tex.Code (1st F.3d 261 5. 281 Tex.R.App. 18.1. Proc. Op. p. at 261. Maj. *12 to file a motion for if rehearing no timely until December 1998 and could not filed motion for rehearing or motion to have divested the court appeals juris- of of extend time is pending.”9 diction or reinvested the district court with the same until that date. Even under this case, present the the record does conceit, Lookingbill’s petition contain judgment a either remanding the timely. petitioner to "custody or ordering his re
lease, as required by Texas Code of Crimi
nal 11.071, Procedure Art. or a 3. mandate in with accordance such a judgment that was “The equitable doctrine of tolling pre sent to the clerk court, of the district as plaintiffs serves a claims strict appli when required by Texas Rule Appellate of Pro cation of the statute of limitations would cedure, Rule 18.1. The letter from the inequitable.”11 be Assuming, arguendo, Clerk of Appeals Court of to that Lookingbill’s petition was untimely, I the presiding judge of the state district disagree with the majority’s refusal court bearing the date of December grant equitable tolling because a strong merely stated: “This is to advise that argument can be petition made that the Court has denied without written order timely filed and because motion for reconsideration on the court’s twice-requested court-appointed lawyer, Thus, own motion.” that letter does not not Lookingbill, was derelict in failing to purport to be a mandate in accordance file a before the limitations with the Court of Criminal Appeal’s judg expired. In his court, brief before this ment on the merits required by Rule Lookingbill argues that the court should 18.1. In mandate, the absence of a juris equitably toll the time between his diction over a cause appel remains in the request first postconviction counsel on court, late attempt and an proceed be May 1998 and the appoint ultimate low, prior mandate, to the return of a is a ment of federal counsel February clear invasion of an appellate juris court’s diction and can be restrained a writ of prohibition.10 Although general rule is that equita tolling ble applied should be in “rare Consequently, jurisdiction of Looking- and exceptional circumstances,”12 recently bill’s remained pending in the Circuit, the Third Horn, in Fahy held Court of for at least a that the confusion surrounding the AED- sufficient amount of time make his fed- PA’s of statute equi warranted eral application timely. Even if by a large table in capital case even when stretch imagination of appellate clerk the circumstances exceptional: were not of court’s letter to the presiding judge of the district court could be considered to be Because consequences are grave so a mandate a judgment, it is undisputed and the applicable law is so confounding that it was not the district unsettled, we must allow less than 18.1(b). 9. Tex.R.App. Proc. Davis v. Cir.1998). 10. See 6 Appellate Tex. Jur.3d Review 815 Cciting Jacobs, Gas Dixie and Fuel Co. v. Id. at 807. 1933)). S.W.2d (Tex.Civ.App.Beaumont See 6 Appellate Tex. Jur.3d Review 821 as power to the appellate court to enforce mandate extraordinary use of writs. the time penalize trigger circumstances
“extraordinary” his motion pendency elapsed statute AEDPA’s tolling of the equitable light of counsel appointment has been petitioner limitations when state of and unsettled consequences grave her claims or asserting his diligent law. *13 statute of the rigid application and be unfair.13 would majority’s conclusion Finally, fed filed a skeletal could have equitable arguments Lookingbill’s imposes pro se corpus petition habeas eral variety “garden than are more upon an unrealistic burden unfair and he was and neglect”14 of excusable elaim[s] by a represented unsophisticated prisoner claims his pursuing diligent clearly Habeas attorney. court-appointed dilatory pen- counsel federal seeking heightened must meet petitions corpus Al petition. habeas his dency of comply with requirements pleading right is no constitutional there though proce of doctrines Supreme Court’s re of counsel collateral appointment courts waiver.16 Federal default and dural and the United view, the State summarily dismiss can a statu have conferred government States on its appears legally insufficient counsel appointment of to the tory right “Moreover, a defendant’s should face.17 After proceedings.15 penalty habeas death dismissed, summarily petition be se pro corpus of habeas a writ application for by counsel subsequently filed any petition of Criminal by the Court been denied had as an abuse subject to dismissal could be 5, 1998, Lookingbill’s on March writ.”18 motion filed a state-appointed counsel reasons, should we foregoing For counsel, but appointment federal As have wise tolling.19 we equitable grant court. federal taken action was no before, be cau must “[w]e concluded ly ap a second Lookingbill filed the statute apply tious September counsel pointment federal the conse especially where harshly,”20 too recon 23,1998, though his motion even grave. are so of error quences before still sideration December, In Appeals. of Criminal discharged counsel until representation without remained he district 3, 1999, when
February ap his motion finally granted my habeas counsel.
pointed federal fundamentally unfair be
opinion, it would denied, Scott, Cir.), U.S. (3d 16. McFarland cert. F.3d
13. (1994). — S.Ct. -, 122 S.Ct. U.S. (2001). L.Ed.2d 241 Id. 17. 18. Id. (citing v. Am. Op. p. at 265 Rashidi Maj. Lines, Cir. President Johnson, Davis v. 1996)). 1998). Cir. 11.071; 21 U.S.C. 20. Fisher Proc. art. Tex. C.Crim. 1999). Cir. 848(q).