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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41638

ROBERT JOSEPH SCHMITT

Petitioner - Appellant

v.

B. ZELLER, Warden

Respondent - Appellee

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 4:06-CV-168

Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Proceeding pro se, Robert Joseph Schmitt appeals the dismissal of his

application for federal habeas relief. We AFFIRM.

On August 9, 2001, a jury convicted Schmitt of two counts of sexual

assault of a child. The Twelfth Court of Appeals in Texas affirmed the

convictions on October 22, 2003. Schmitt did not file for discretionary review.

Schmitt filed a state habeas application on August 16, 2004. The Texas Court

of Criminal Appeals denied the application on February 16, 2005, but Schmitt

United States Court of Appeals

Fifth Circuit

F I L E D

December 8, 2009

Charles R. Fulbruge III

Clerk
No. 06-41638

2

did not learn of the denial until February 23, 2006, after he inquired about the

application’s status. On March 5, 2006, Schmitt wrote a letter to the Texas

Attorney General explaining his situation. The Attorney General’s Office

responded by letter dated March 27, 2006, informing Schmitt that it represented

the State and could not provide him with legal advice. Schmitt says he received

the letter March 30, 2006.

Schmitt filed a federal application for a writ of habeas corpus on April 14,

2006. See 28 U.S.C. § 2254. The application alleged ineffective assistance of

counsel and multiple errors by the trial court. The Government moved to

dismiss the petition as time-barred. The magistrate judge recommended the

petition be dismissed as time-barred. Schmitt filed no objections. The district

court adopted the magistrate judge’s Report and Recommendation. On appeal,

Schmitt argues that the district court erred in denying him equitable tolling.

The Antiterrorism and Effective Death Penalty Act of 1996 provides that

any federal challenge to a state conviction must be brought within one year after

direct review of the judgment becomes final. 28 U.S.C. § 2244(d)(1). The period

is tolled once an inmate files for post-conviction review in state court, then

recommences when a final denial of relief by the state occurs. Id. at § 2244(d)(2).

Besides the statutory tolling, an inmate may qualify for equitable tolling

if the failure to file timely is caused by “external factors beyond his control;

delays of the petitioner’s own making do not qualify.” In re Wilson, 442 F.3d 872,

875 (5th Cir. 2006). The petitioner must show: “(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his

way.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)). The magistrate judge found that

Schmitt was not entitled to equitable tolling.

Because Schmitt did not object to the report of the magistrate, we review

only for plain error. Douglas v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29
No. 06-41638

3

(5th Cir. 1996) (en banc). For there to be plain error, the district court must err,

the error must be plain, and the error must affect the inmate’s “substantial

rights.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). The court has

discretion to remedy the error but should exercise the discretion only if the error

“seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

Schmitt delayed approximately ten months after his conviction was final

before applying for state habeas relief. We have recognized that a component of

the obligation to pursue rights diligently is not to wait until near a deadline to

make a filing, then seek equitable tolling when something goes awry. See

Johnson v. Quarterman, 483 F.3d 278, 287-88 (5th Cir. 2007) (filing on the last

day and encountering a court computer problem that prevented filing showed a

lack of diligence). Similarly, Schmitt’s filing the state petition after squandering

most of the year available under Section 2244 is a factor in deciding whether

equitable tolling should be allowed for problems that arise in later filing the

federal petition. Leaving little margin for error is incautious and not diligent.

Having only two months to act once the state habeas proceedings

concluded, Schmitt did not inquire into his application’s status for eighteen

months, which was a year after the denial of relief had actually been entered.

He then delayed another fifty days between learning of the denial of the state

application and filing his Section 2254 application. 

In evaluating diligence, our precedents have examined both the delay

between filing for relief in state court and later inquiring about its status, and

the delay between learning of the state court’s ruling and the filing of an

application under Section 2254 in federal court. We have found diligence when

a petitioner waited eleven months before inquiring into the status of his state

habeas petition and then filed his federal application only one week later. Hardy

v. Quarterman, 577 F.3d 596, 599 (5th Cir. 2009). We have also found diligent
No. 06-41638

4

pursuit of relief when seven months after filing his state petition, the inmate

learned of its denial, filed for an out-of-time appeal three days later, then filed

for federal habeas within a month of the denial of the out-of-time appeal.

Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). 

Conversely, we found lack of diligence where the petitioner alleged that he

filed a state petition but learned approximately ten months later – which was

eight months after the time to file had expired – that there was no record of it.

Howland v. Quarterman, 507 F.3d 840, 846 (5th Cir. 2007). Among the indicia

of a lack of diligence was that the inmate had waited ten months after his

conviction before attempting to file his state habeas application. Id.

In addition, we found a lack of diligence when an inmate waited thirty

months before inquiring into the status of his state petition. Lewis v. Cockrell,

275 F.3d 46, 2001 WL 1267701 (5th Cir. Oct. 15, 2001) (unpublished). Lewis

filed his Section 2254 application within two weeks of learning that the state

court denied relief, but it was the thirty-month delay that we found to disqualify

him from equitable relief. Id. at *3. Though the Lewis decision is not

precedential, it was some guidance for Schmitt as he was determining what he

had to do. 

This caselaw reveals that there is no mathematical formula by which to

calculate diligence by an inmate in learning either of the denial of his state

habeas relief or in thereafter filing his Section 2254 application. “As a

discretionary doctrine that turns on the facts and circumstances of a particular

case, equitable tolling does not lend itself to bright-line rules.” Fisher v.

Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Schmitt’s initial delay of eighteen

months is shorter than the periods we have found not to reflect diligence, and

longer than any in which we have found diligence. The wait of fifty days after

learning of the denial of relief in state court before filing the section 2254
No. 06-41638

5

application, a wait which included contact with and a response from the Texas

Attorney General’s Office, has no clear analogy in the precedents.

Because there is no mathematical formula to apply, and the district court

was presented with delays somewhere between those that have been found to

reflect diligence and others that do not, we conclude that any error in refusing

to apply equitable tolling would not be obvious under current law. United States

v. Valles, 484 F.3d 745, 759 (5th Cir. 2007). 

Because there was no plain error, we AFFIRM.