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. 08-70008

KEITH STEVEN THURMOND

Petitioner - Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS 

DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION

Respondent - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. H 06-2833

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Petitioner Keith Steven Thurmond, convicted in Texas state court of

capital murder and sentenced to death, seeks a certificate of appealability

(“COA”) to appeal the district court’s order dismissing his petition for writ of

habeas corpus. The district court held that Thurmond’s petition was timebarred. Thurmond does not dispute that, in order to be timely, he had one year,

United States Court of Appeals

Fifth Circuit

F I L E D

March 9, 2009

Charles R. Fulbruge III

Clerk
No. 08-70008

2

or until August 31, 2006, to file for post-conviction relief, and his petition was

not filed until September 1, 2006. Thurmond argues, however, that the

equitable tolling doctrine should apply either because (1) there was almost a

two-month delay before he was appointed counsel or (2) Thurmond’s counsel

attempted to file the petition on August 31, 2006 in the after hours filing box,

but the machine was not working. Because jurists of reason would not find

debatable the district court’s procedural ruling, we deny Thurmond’s application

for a COA.

I. BACKGROUND

Thurmond was convicted and sentenced to death for the 2001 capital

murders of Sharon Anne Thurmond, his wife, and Guy Sean Fernandez. Sharon

Thurmond separated from her husband a few months before the murder. She

took their child and moved across the street to live with Guy Sean Fernandez.

The day of the murders, deputies served Thurmond with a protective order and

placed his six-year-old son in the custody of his wife. Thurmond was unhappy

that his wife was living across the street with another man. After the deputies

left with the child, Thurmond became very upset. He then shot and killed both

victims.

The Texas Court of Criminal Appeals affirmed Thurmond’s conviction in

November 2004. While his direct appeal was pending, Thurmond filed a state

habeas application in the state court in October 2004. In June 2005, the trial

court entered findings of fact and conclusions of law recommending that

Thurmond’s application be denied. On August 31, 2005, the Court of Criminal

Appeals adopted the findings and conclusions and denied the application. 

On September 9, 2005, Thurmond filed a motion for the appointment of

counsel in federal court, and the court appointed counsel on November 11, 2005.

Thurmond’s counsel filed an application for writ of habeas corpus in the United
No. 08-70008

3

States District Court for the Southern District of Texas on September 1, 2006.

In June 2007, the Respondent filed a motion for summary judgment, which the

district court granted and denied Thurmond’s habeas petition. The district court

held that Thurmond’s petition was time-barred, and alternatively, Thurmond

was not entitled to relief on his claims. Thurmond timely filed a notice of appeal.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

requires Thurmond to obtain a COA before he can appeal to this court. 18

U.S.C. § 2253(c); Morris v. Dretke, 379 F.3d 199, 203 (5th Cir. 2004). To obtain

a COA, Thurmond must make “a substantial showing of the denial of a

constitutional right.” § 2253(c)(2). Where, as here, the district court denies a

habeas petition on procedural grounds, “a COA should issue when the prisoner

shows, at least, that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis

added); see also Morris, 379 F.3d at 204. AEDPA establishes a one-year statute

of limitations for seeking federal habeas corpus relief from a state-court

judgment. 28 U.S.C. § 2244(d)(1). 

III. DISCUSSION

Thurmond does not address the merits of the alleged denial of a

constitutional right; his petition focuses on the district court’s procedural ruling.

Thurmond contends that his counsel completed his petition on August 31, 2006,

then attempted to file it in the after hours filing box, which was not working.

His counsel then mailed the habeas petition on the same day, resulting in it

being file marked on September 1, 2006. Thurmond therefore contends that his
No. 08-70008

4

petition should be considered timely filed due to the mechanical failure of the

late filing machine. 

Even accepting as true the claim that the late filing machine was broken,

such mechanical failure did not render the clerk’s office inaccessible for purposes

of computing time. The administrative procedures of the Southern District of

Texas require all attorneys admitted to the bar of that court, as well as those

admitted pro hac vice, to register as Filing Users. Administrative Procedures for

Electronic Filing in Civil & Criminal Cases 2.A. (S.D. Tex. Jan. 2007). The

procedures state that “a Filing User is required to file electronically all

complaints, initial papers, petitions, motions, memoranda of law, briefs, and

other pleadings and documents filed with the court” in connection with civil and

criminal cases. Administrative Procedures 1.B(1)-(2). Thurmond does not argue

that the electronic filing system was unavailable for purposes of timely filing the

petition. 

Further, equitable tolling should not apply in this case. “To be entitled to

equitable tolling, the petitioner ‘must show (1) that he has been pursuing his

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

way.’” Johnson v. Quarterman, 483 F.3d 278, 285 (5th Cir. 2007) (quoting

Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007)). Thurmond meets neither of

the requirements for equitable tolling. Thurmond waited until the very last day,

after normal business hours to attempt to file his petition. The district court

noted that Thurmond’s counsel was aware that the late filing machine was

broken from a prior case, and Thurmond does not dispute that he was previously

on notice that the machine was broken, albeit several months before the

attempted late filing on August 31, 2006. In light of counsel’s previous problems

with the late filing machine, more than eight months to prepare the petition, and

the availability of electronic filing, this court cannot find that Thurmond was

diligently pursuing his rights by waiting until the last day, after business hours,
No. 08-70008

5

to attempt to timely file his petition in the after hours filing machine. Id. at 288

(refusing to apply equitable tolling and finding that circumstances were not

“rare and extraordinary” where counsel “was aware of the deadline, and had

months in which to complete the petition, but waited until the very last minute

on the due date to complete work on it when the computer failed”). For the same

reasons, no extraordinary circumstances stood in his way.

Because our ruling on the procedural issue ends this case, we decline to

address the constitutional issue. See Slack, 529 U.S. at 485; Johnson, 483 F.3d

at 288. 

IV. CONCLUSION

Jurists of reason would not find it debatable whether the district court was

correct in its procedural ruling. We therefore DENY Thurmond’s application for

a COA.