UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50811

JAMES CALVIN LEWIS,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (SA-99-CV-1411-OG) _________________________________________________________________ October 15

Before BARKSDALE and STEWART, Circuit Judges, and DUPLANTIER,

District Judge1.

PER CURIAM:2

Claiming the one-year Antiterrorism and Effective Death

Penalty Act (AEDPA) limitations period should be equitably tolled

because he allegedly never received his attorney’s letter advising his direct appeal had been denied, James Calvin Lewis appeals the

dismissal of his habeas petition. AFFIRMED.

1 District Judge of the Eastern District of Louisiana, sitting by designation. 2 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.

Lewis was convicted of aggravated sexual assault of a child

and sentenced to 99 years’ imprisonment. The Texas appellate court

affirmed his conviction on 12 December 1996. Lewis’ petition for

discretionary review (PDR) with the Texas Court of Criminal Appeals

was denied on 7 May 1997. On 28 September 1999, Lewis filed an

application for state habeas relief; it was denied on 23 November

1999.

On 3 December 1999, Lewis filed for federal habeas relief.

Respondent moved to dismiss, on the basis the petition was untimely

under AEDPA. See

(d). The magistrate judge

concluded Lewis’ conviction became final on 5 August 1997 — 90 days

after the PDR denial, which was the final day for filing for review

by the Supreme Court of the United States. See Ott v. Johnson,

(5th Cir. 1999)(holding

(d)(1)(A)

“takes into account the time for filing a certiorari petition in

determining the finality of a conviction on direct review....”),

cert. denied,

(2000). Accordingly, the magistrate

judge concluded the one-year limitations period began running on

that date.

That period is tolled while any properly filed State post-

conviction claim is pending.

(d)(2). But, because

Lewis did not file his state petition until 28 September 1999, the

magistrate judge concluded: the limitations period had run; and,

therefore, Lewis’ federal petition was untimely. See

(d)(1)(A) and (d)(2). Lewis, however, asserted the period

2 should be equitably tolled because he did not receive notice of the

7 May 1997 PDR denial until September 1999.

According to Lewis, on 7 May 1997, his attorney mailed him a

letter, advising the PDR had been denied. Lewis claims that he

never received the letter and that jail records reflect he received

no mail from his attorney in May or June 1997. On 17 August 1999,

Lewis wrote to his attorney, inquiring about the PDR status. His

attorney, after checking Lewis’ file, responded on 13 September

1999 and confirmed the 7 May 1997 denial. Approximately two weeks

later, on 28 September 1999, Lewis’ attorney filed Lewis’ state

habeas petition.

The magistrate judge recommended against equitable tolling on,

inter alia, Lewis’ lack of diligence in seeking habeas relief. In

considering Lewis’ objections to the magistrate judge’s

recommendations, the district court concluded, citing Coleman v.

Johnson,

(5th Cir. 1999), cert. denied,

(2000): equitable tolling does not apply for instances of

excusable neglect; it applies primarily where a plaintiff is misled

by the State about his action or is “prevented in some

extraordinary way from asserting his rights”; and Lewis’ was not

such a situation. The district court also declined to equitably

toll the limitations period because Lewis had not been diligent, as

evidenced by his waiting more than two years after the PDR denial

to inquire about its status.

Our court granted Lewis a certificate of appealability on

whether he is entitled to equitable tolling of the limitations

period.

3 II.

The district court’s decision not to equitably toll the

limitations period is reviewed for an abuse of discretion. United

States v. Patterson,

(5th Cir. 2000); Fisher v.

Johnson,

(5th Cir. 1999), cert. denied,

(2001). Of course, to the extent the district court

denied equitable tolling as a matter of law, we review that

conclusion de novo. Fisher,

n.9 (citing FDIC v.

Dawson,

(5th Cir. 1993), cert. denied,

(1994)).

Because the limitations period is not jurisdictional, it is

subject to equitable tolling. Davis v. Johnson,

(5th Cir. 1998), cert. denied,

(1999). Only in

“‘rare and exceptional circumstances’”, however, is such tolling

appropriate. Fisher,

. Such relief may issue

“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”; and the “‘garden

variety claim of excusable neglect’ does not support equitable

tolling”. Coleman,

(internal quotations and

citations omitted). We have also held: “In order for equitable

tolling to apply, the applicant must diligently pursue his § 2254

relief”. Id. at 403. It goes without saying that “‘equity is not

intended for those who sleep on their rights’”. Id. (quoting

Fisher,

n.11). “Congress enacted AEDPA, in part,

to curb abuse of the writ of habeas corpus. See H.R. CONF. REP. NO.

104-518, at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 944. This

4 purpose manifests itself in the one-year statute of limitations,

which will speed up the habeas process considerably.” Fisher,

. Obviously, a petitioner’s lack of diligence is

contrary to this AEDPA provision.

Lewis does not claim Respondent contributed to the alleged

loss of the 7 May 1997 letter from his attorney about the PDR

denial. Therefore, to demonstrate his is the requisite rare and

exceptional circumstance, Lewis must show his not receiving the

letter interfered in some exceptional way with his pursuing habeas

relief. But, even assuming arguendo he has made such a showing,

Lewis must also demonstrate he was diligent in pursuing habeas

relief.

The district court held Lewis was not diligent due to the

lapsed time between his PDR denial and his inquiry to his attorney.

The cases in this circuit that have considered diligence vel non in

this context have focused, however, on the petitioner’s efforts

after the alleged impediment no longer existed. See Phillips v.

Donnelly,

(5th Cir.) (petitioner diligent where

he filed for out of time appeal within three days of learning state

habeas petition had been denied and filed federal habeas petition

within one month of denial of out of time appeal), reh’g granted in

part on other grounds,

(5th Cir. 2000); Coleman,

(petitioner not diligent where he waited six months to

file federal habeas petition after learning of denial of his state

post conviction application); Fisher,

(petitioner

not diligent where he had 322 days after learning of AEDPA

limitations period to file federal habeas petition).

5 Regarding diligence vel non, the district court correctly

considered Lewis’ actions before he became aware of his PDR denial.

Were we to hold otherwise, Lewis could theoretically have waited

another two and one-half years to make inquiry and still be

considered diligent, so long as he acted promptly after becoming

aware of the denial.

Concomitantly, the district court did not abuse its discretion

in determining non-diligence on the part of Lewis. Lewis concedes

that he waited approximately two and one-half years after filing

his PDR to inquire about its status. Obviously, this is not the

diligent pursuit of habeas relief. Instead, having apparently

heard nothing from his attorney, Lewis should have inquired at a

far earlier date about the PDR’s status. One cannot remain idle

for such a length of time and then legitimately claim entitlement

to equitable relief. Therefore, the district court did not abuse

its discretion in declining to equitably toll the limitations

period.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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