UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

01-31310

KERRY MYERS,

Petitioner-Appellant,

VERSUS

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

Appeal from the United States District Court For the Eastern District of Louisiana (00-CV-2269-D) December 16, 2002

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

Kerry Myers appeals the dismissal of his petition for habeas

corpus as untimely, arguing that district court erred in refusing

to toll the statute of limitations during two time periods in

dispute. Finding the petition time-barred by the one-year

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. limitation period of the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”),

(d)(1),2 we affirm.

I. Background

AEDPA applies to all habeas corpus petitions filed after

April 24, 1996, AEDPA’s effective date. Kiser v. Johnson,

(5th Cir. 1999). Because his conviction became final in

1992,3 before AEDPA’s effective date (April 24, 1996), absent any

tolling, Myers was afforded until April 24, 1997, to file an

application for federal habeas relief. Flanagan v. Johnson,

(5th Cir. 1998).

The one-year time limitation on seeking relief under

is tolled by the pendency of “State post-conviction or other

collateral review.”

(d)(2). Myers did file three

state applications for post-conviction relief, which effected some

tolling, but not enough, as discussed below. Myers argues, first,

that a civil suit he filed was such an essential part of his quest

for post-conviction relief that, legally or equitably, additional

tolling should apply for that proceeding. Second, he argues that

equitable tolling should apply to a period following the denial of

2 Under AEDPA, “A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”

(d)(1). 3 The denial of 1appellate relief and certiorari following Petitioner’s conviction for second degree murder is reported in State v. Myers,

(La. App. 5th Cir. 1991), writ denied,

(La. 1991), cert. denied,

,

,

(1992).

2 relief in his third state application for post-conviction relief,

because neither he nor his counsel was notified that a decision had

been rendered. As explained below, we hold that the period during

Petitioner’s civil action did not toll the federal limitations

period, and that the second period fell after the limitations

period had already expired.

II. Tolling for the Civil Suit

We review de novo the denial of federal habeas corpus relief

on procedural grounds. Moore v. Cain,

(5th Cir.

2002). We review denial of equitable tolling for abuse of

discretion. Fisher v. Johnson,

(5th Cir. 1999),

cert. denied,

,

,

(2001).

Myers first asks us to toll a period of time spent pursuing a

civil action. The civil suit was related conceptually to his

efforts to obtain post-conviction relief, in that his first and

second state applications for post-conviction relief were based in

part on newly discovered evidence as a result of a book about the

homicide written by Joseph Bosco; the civil action sought to revoke

Bosco’s journalistic privilege against divulging his sources.

The case was not related procedurally, however. In

Petitioner’s first application for post-conviction relief, the

state court denied relief in part because Bosco refused to name his

sources. In the second application Myers included an affidavit

that the affiant had information from Bosco about prosecutorial and

3 judicial misconduct in Petitioner’s case. Myers argued that in

revealing information to his affiant, Bosco waived any privilege.

The state court denied relief, holding that the affidavit was not

competent, and further suggesting that revocation of privilege may

be obtained via a state court action. It was then that Myers filed

his civil action against Bosco seeking to revoke Bosco’s claim of

privilege.

Myers asks that we toll, equitably or legally, for his pursuit

of the civil action the period from November 4, 1997, to May 7,

1998. That time frame implies that the civil action was a

continuation of the post-conviction relief process, since those are

the dates, respectively, of the denial of relief on the second

application and of the filing of the third state application for

post-conviction relief. The actual dates of pendency of the civil

action were from December 10, 1997, the date it was filed, to

March 25, 1998, the date of judgment by default against Bosco.

Myers argues that the civil suit was an essential component of

the post-conviction relief “effectively demanded” by the state

district court. The state court’s remarks about waiver of

journalistic privilege were a suggestion and used permissive, not

injunctive, language.4 Nothing in the order supports the notion

4 The court stated, While the affidavit is insufficient for an evidentiary hearing, defendant Myers may file an action seeking to revoke the reporter's privilege in Orleans parish. If his action is successful in Orleans parish, then the evidence thereby procured may be used as the basis for another post conviction

4 that this civil action was mandated by the judge or that it was

part of the ongoing state habeas petition. The judge indicated

that Myers “may” file the action, and that any evidence procured

“may” be used in “another” post-conviction proceeding.

A civil suit to obtain evidence needed for a state habeas

petition is not a collateral attack on a conviction which would

toll the statute of limitations. See Moore,

(holding that a mandamus application did not toll the one-year

period because it did not seek review of the judgment pursuant to

which the petitioner was incarcerated); see also Flanagan,

(no statutory tolling while a petitioner gathers

evidence to support his petition when the factual predicate for

claim that the evidence supported was known to the petitioner at an

earlier date). We find no basis under § 2244(d)(2) to toll the

time the civil suit was pending as a continuation of the post-

conviction relief or as collateral review of the judgment of

conviction. Petitioner’s second state petition ceased to be

pending when relief was denied, and the one-year limitation did not

continue to be tolled for Petitioner’s civil suit to revoke the

reporter’s privilege.

Nor do we find grounds for equitable tolling during the same

time period. We have considered United States v. Patterson,

(5th Cir. 2000), which allowed equitable tolling, and find

relief application in this court.

-69.

5 it distinguishable. First, Patterson was a pro se litigant who was

misled by the district court’s statement upon dismissal that he

could refile. Myers was represented by counsel who should have

realized that, with a dismissal of his second petition,

Petitioner’s one-year would continue to run while he was pursuing

the civil suit. Alternatively, counsel could have appealed in his

post-conviction proceedings while pursuing the civil suit in order

to continue tolling the one-year period. A further distinction is

the diligence of petitioner: while Patterson diligently pursued

his claims, the same cannot be said of Myers. Myers knew about his

claim of new evidence when he filed his first habeas petition in

1994, and received information after his first state application

was denied (November 1995) that Bosco had divulged information to

petitioner’s affiant and thereby waived his privilege. Yet Myers

did not pursue an action to revoke privilege until December 1997.

The doctrine of equitable tolling applies in “extraordinary

circumstances.” Fisher,

. Gathering evidence to

support a state habeas claim is not an exceptional circumstance

worthy of equitable tolling, particularly where the claim was not

diligently pursued. Equitable tolling for such a reason would

“characterize as ‘rare and exceptional’ those circumstances that

countless other prisoners could claim as their own.” Felder v.

Johnson,

(5th Cir. 2000), cert. denied,

,

,

(2000). Equity is for

6 those who diligently pursue their rights. See id. at 176; Coleman

v. Johnson,

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

,

,

(2000). Therefore,

we find no abuse of discretion in the district court’s refusal to

equitably toll the one-year limitation.

III. The Period of No Notice

Myers next claims that he received no notice of the court's

denial of the third state application for relief until August 23,

1999. Thus he contends that the time from January 25, 1999, the

denial of the third state court application, to August 23, 1999,

when his counsel first got word of that denial, should be equitably

tolled.

Any time Myers was unaware of the ruling on his third state

petition does not affect our decision, because Petitioner’s federal

petition is untimely regardless. As the magistrate judge

calculated in his Report and Recommendation, 204 days of

Petitioner’s one-year limit expired between AEDPA’s effective date

(April 24, 1996) and the date Myers filed his second state petition

(November 15, 1996).5 Since the time Myers spent pursuing his

civil suit did not toll the limitation period, Myers had only 161

days left after denial of his second petition (November 4, 1997).

Thus his one-year period ran out before he filed his third state

5 The first state application for post-conviction relief was filed and concluded in 1995, before the effective date of AEDPA, and so does not affect the limitation period.

7 petition (May 7, 1998) and well before he filed this federal habeas

petition (July 27, 2000, at the earliest).

The district court’s conclusion that this petition was time

barred by the one-year limitation period of AEDPA is well founded.

IV. Conclusion

There being inadequate grounds shown to toll the one-year

limitation period in this case, we find no error in the district

court’s dismissal of the petition as untimely under AEDPA.

AFFIRMED.

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