IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-50566

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THOMAS JAMES FISHER,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON,

Director, Texas Department of

Criminal Justice, Institutional Division,

Respondent-Appellee.

_________________________

Appeals from the United States District Court

for the Western District of Texas

_________________________

May 24, 1999

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Thomas James Fisher appeals the dismissal of his 28 U.S.C.

§ 2254 habeas petition as time-barred, contending that the district

court abused its discretion by refusing equitably to toll the

limitation period. Finding no error, we affirm.

I.

Fisher was convicted of murder and sentenced to serve thirty
1 Pub. L. No. 104-132, 110 Stat. 1214. AEDPA became effective on April 24,

1996.

2

years in prison. His conviction was affirmed by the Texas Court of

Appeals and, on petition for discretionary review, by the Texas

Court of Criminal Appeals. He filed a state habeas application,

and the trial court recommended denial without a hearing. The

Texas Court of Criminal Appeals denied the application without

written order.

Fisher mailed a pro se habeas petition to the federal district

court in which he alleged various constitutional errors. The state

moved to dismiss, averring that the filing was time-barred under

the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”).1 Fisher objected to the state's calculations of time

and argued that the limitation period should be tolled for various

reasons. The court granted the motion to dismiss, agreeing that

AEDPA's statute of limitations had run.

Fisher appeals. The district court granted his application to

proceed in forma pauperis and granted his application for a

certificate of appealability (“COA”) on whether the court should

have equitably tolled the limitation period until he had actual

notice of AEDPA and during his psychiatric confinement.

II.

A.

Fisher filed his § 2254 petition in 1997, after AEDPA's
2 The limitations provision provides: 

(1) 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

judgement of a State court. The limitation period shall run from

the latest ofSS

(A) the date on which the judgment of conviction became

final by the conclusion of direct review or the

expiration of the time for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State

action;

(C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if that

right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of the claim

or claims presented could have been discovered through

the exercise of due diligence.

(2) The time during which a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward

any period of limitation under this subsection.

28 U.S.C. § 2244(d).

3

April 24, 1996, effective date, and hence his claim is governed by

its provisions. Lindh v. Murphy, 521 U.S. 320, 326 (1997). AEDPA

establishes, for the first time, an explicit limitation period for

state prisoners filing federal habeas petitions. See Lonchar v.

Thomas, 517 U.S. 314, 327 (1996). Congress allows “a person in

custody pursuant to the judgment of a state court” one year to file

a § 2254 petition. See 28 U.S.C. § 2244(d)(1).2 The statute of

limitations begins to run from the latest of several possible

events; the date Fisher's state judgment became final is the only
3 See Flanagan v. Johnson, 154 F.3d 196, 200 n.2 (5th Cir. 1998); see also

United States v. Flores, 135 F.3d 1000, 1004-05 (5th Cir. 1998) (applying same to

28 U.S.C. § 2255 motions), cert. denied, 119 S. Ct. 846 (1999).

4 See Flanagan, 154 F.3d at 202 (applying FED.R.CIV.P. 6(a) to decide that

the effective date does not fall within the one-year period, and hence petitions

filed “on or before April 24, 1997[,] are timely.”).

5 See Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998) (applying

§ 2244(d)(2)'s tolling provision to one-year “reasonableness period” under Flanagan

and Flores).

4

relevant event here. See id. § 2244(d)(1)(A).

Fisher's judgment became final in 1993, prior to AEDPA's

effective date. Retroactively applying AEDPA would time-bar his

petition as of AEDPA's 1996 effective date. In accord with AEDPA's

language, and to prevent the apparent inequity of such a technical

result, we have allowed a prisoner whose conviction became final

before AEDPA's effective date a reasonable length of timeSSa grace

periodSSduring which to file his petition.3 Drawing on

§ 2244(d)(1), we have decided that one year presumptively

constitutes a reasonable time. See Flanagan, 154 F.3d at 200;

Flores, 135 F.3d at 1006. This would make Fisher's petition timely

if filed on or before April 24, 1997.4

As the district court recognized, however, limitations should

be tolled pursuant to § 2244(d)(2) during the time that properly

filed state post-conviction or other collateral review proceedings

are pending.5 The time from when Fisher properly filed his state

habeas application until when it was denied does not count against
6 See also Fields, 159 F.3d at 916 (holding that, because state postconviction proceedings were pending during reasonable one-year limitation period

for 91 days from filing to denial, petitioner had additional 91 days after

April 24, 1997, to file); Flanagan, 154 F.3d at 199 & n.1 (concluding petitioner

had one year from denial of state habeas application filed before, and pending

on, AEDPA's effective date to file federal petition).

7 Fisher claims his state application for post-conviction relief was

“pending” before the state courts longer than this, tolling the limitation period

by 12 more days. At the front end, Fisher argues he mailed his state application

on April 17; it should be deemed filed then under the "mailbox rule" (although

he does not explain how the application can be deemed “pending,” as § 2244(d)(2)

requires, before it reaches the court). At the back end, he claims he did not

receive notice that the application was denied until September 3; under a notice

rule, the tolling should continue until then (although he again fails to explain

how the application “is pending” after it is denied). Because the district court

did not grant a COA on these issues, we reserve them. See Lackey v. Johnson, 116

F.3d 149, 151 (5th Cir. 1997). We note, however, that, even if Fisher were

correct on both fronts, the 12 additional days would not alter the outcome.

8 The district court actually recorded the application as filed on

September 22, 1997; but Fisher mailed his application on September 15. As

recognized by the parties, we treat the date a pro se prisoner deposits a federal

petition in the prison mail system as the filing date for purposes of AEDPA's

statute of limitations. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998)

(per curiam).

5

the limitation period. See § 2244(d)(2).6

Fisher filed his state habeas application on April 22, 1997,

two days before the initial one-year statute of limitations was to

expire. The state courts denied relief, thus terminating the

pending application, on August 27, 1997.7 Adding to that date the

two days within the limitation period remaining before the state

application was filed, Fisher needed to file his federal petition

by August 29, 1997, but he did so on September 15, 1997.8 

III.

Fisher argues that the district court should have equitably

tolled the limitation period. In Davis v. Johnson, 158 F.3d 806,
9 See also FDIC v. Dawson, 4. F.3d 1303, 1308 (5th Cir. 1993) (applying

de novo review rather than abuse of discretion because court denied equitable

tolling as a matter of law rather than in exercise of discretion); accord Truitt

v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998); Clark v. Runyon, 116 F.3d

275, 277 (7th Cir. 1997); Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995).

But cf. Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir. 1998)

(en banc) (finding decision to apply equitable tolling under AEDPA “not clear

error as a matter of law”).

6

811 (5th Cir. 1998), we held that AEDPA's filing provision is not

jurisdictional but, instead, is a statute of limitations that, like

all limitation statutes, could be equitably tolled. Id.; see also

Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir. 1998), cert.

denied, 119 S. Ct. 847 (1999). 

The district court declined to invoke equitable tolling. Such

a decision is left to the district court's discretion; we review,

therefore, only for abuse of discretion. See Barrs v. Sullivan,

906 F.2d 120, 122 (5th Cir. 1990).9

A.

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, but we draw on general principles to

guide when equitable tolling is appropriate. We must be cautious

not to apply the statute of limitations too harshly. “Dismissal of

a first habeas petition is a particularly serious matter, for that

dismissal denies the petitioner the protections of the Great Writ

entirely, risking injury to an important interest in human

liberty.” Lonchar, 517 U.S. at 324.
10 See Flanagan, 154 F.3d at 198 (noting that “AEDPA severely constricts

the time period allowed for filing a federal habeas corpus action,” compared to

pre-AEDPA period, when a “prisoner could wait almost a decade to file his habeas

petition”) (quotation omitted); accord Miller v. New Jersey State Dep't of

Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (explaining that AEDPA speeds up

process to curb abuse of writ).

11 Other circuits that have addressed equitable tolling under AEDPA have

been no more specific. For example, the Ninth Circuit explains that equitable

tolling is appropriate under AEDPA “if extraordinary circumstances beyond a

prisoner's control make it impossible to file a petition on time.” Calderon,

163 F.3d at 541 (quotation omitted). The Third Circuit finds tolling proper

“only when the principles of equity would make [the] rigid application [of a

limitation period] unfair,” generally when “the petitioner has in some

extraordinary way . . . been prevented from asserting his or her rights” despite

exercising “due diligence in investigating and bringing the claims.” Miller,

(continued...)

7

At the same time, the Supreme Court has expressed deference to

the rules that Congress fashioned concerning habeas. See id.

at 321-23. 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 purpose manifests

itself in the one-year statute of limitations, which will speed up

the habeas process considerably.10

The court's judicious discretion equitably to toll helps

safeguard habeas while still fulfilling Congress's express desire

to accelerate the process. A court can allow an untimely petition

to proceed under the doctrine of equitable tolling “in

extraordinary circumstances.” Flanagan, 158 F.3d at 810. We and

the district courts, guided by precedent, must examine each case on

its facts to determine whether it presents sufficiently “rare and

exceptional circumstances” to justify equitable tolling. Id.

at 811.11
11(...continued)

145 F.3d at 618-19 (alterations in original; quotations omitted). We look to our

non-AEDPA cases for further elucidation of when to toll. See Rashidi v. American

President Lines, 96 F.3d 124, 127 (5th Cir. 1996) (“Equitable tolling applies

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.”); Ynclan v. Department of the Air Force, 943 F.2d 1388, 1392-93 (5th

Cir. 1991) (delays by the court in filing while related motions pending); Loeber

v. Bay Tankers, Inc., 924 F.2d 1340, 1343 (5th Cir. 1991) (when tolling does not

defeat purpose of encouraging diligence and injustice to plaintiff would

otherwise result); Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989)

(must show diligence, because “equity is not intended for those who sleep on

their rights.”); cf. Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th

Cir. 1991) (“lack of knowledge of the filing deadlines,” “lack of

representation,” “unfamiliarity with the legal process,” and “ignorance of legal

rights” generally do not justify tolling).

12 In Davis, although we held that equitable tolling was appropriate under

AEDPA, we assumed, without deciding, that the petitioner's circumstances would

justify it. See Davis, 158 F.3d at 808 n.2.

8

For example, in Cantu-Tzin, the only case in which we have

applied equitable tolling to AEDPA,12 we addressed whether the

state's failure to appoint competent habeas counsel, forcing the

petitioner to represent himself, justified equitably tolling the

limitation period to allow an untimely petition. We held that,

with facts “wholly unfavorable to the petitioner,” “the fullydeveloped record demonstrates the unavailability of equitable

tolling of the AEDPA limitations period.” Cantu-Tzin, 162 F.3d at

299-300. Cantu-Tzin dismissed one attorney and sought to represent

himself and failed diligently to pursue his § 2254 petition despite

awareness of the limitation period. See id. This “disdain for and

lack of cooperation with state access-to-counsel procedures and the

AEDPA deadline” meant equity did not favor tolling. Id. at 297.
13 Cf. Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992) (holding

that neither prisoner's pro se status nor ignorance of the law constitutes

“cause” for failing to include legal claim in prior petition); Barrow, 932 F.2d

at 478 (holding that “lack of knowledge of the filing deadlines” and “lack of

representation” do not justify equitable tolling).

9

B.

Fisher points to two circumstances. First, he did not receive

notice of AEDPA's statute of limitations until June 9, 1996, fortythree days after AEDPA's effective date, because a copy of AEDPA

did not arrive in the prison library until that day. Second, he

claims the statute should be tolled for the seventeen days he spent

confined in a special unit for psychiatric evaluation, without his

glasses and without access to legal materials. Because Fisher

filed only seventeen days late, equitably tolling for either reason

would render his petition timely.

1.

Fisher requests that the statute of limitations be equitably

tolled for forty-three days, the time between AEDPA's effective

date, when the statute began to run for him, and the day on which

he received actual notice of AEDPA. We disagree; this does not

present a rare and exceptional circumstance that justifies

equitable tolling.

First, ignorance of the law, even for an incarcerated pro se

petitioner, generally does not excuse prompt filing.13 We recognize

that Fisher's incarceration prevented him from knowing sooner of
10

AEDPA's limitation period; even due inquiry could not have yielded

the necessary knowledge. Nonetheless, we are wary of finding it

sufficient to toll the limitation period.

Second, petitioner's circumstance is not rare. Our one-year

grace period for those incarcerated as of AEDPA's effective date

affects hundreds of prisoners. Most likely, not a single one of

them learned of AEDPA on its effective dateSSits enactment date.

When we formulated the rule, however, we found one year from the

effective date a reasonable period of time, regardless of this

obvious delay in notice to prisoners.

Furthermore, Congress knew AEDPA would affect incarcerated

individuals with limited access to outside information, yet it

failed to provide any tolling based on possible delays in notice.

In the face of Congressional silence, we are reticent to create

this type of tolling judicially. Although we would apply it here

under the rubric of equitable tolling, the same concept would apply

equally to many other prisoners and in different variations of

delayed information, becoming a judicial tolling rule. Such broad

decisions are for Congress, not equity.

Finally, equity simply does not call for tolling on these

facts. Even after learning of AEDPA's limitation period, Fisher

had 322 days to complete his § 2254 petition. That is more than

enough time. See Covey, 865 F.2d at 662 (“[E]quity is not intended
14 Fisher relies on our rule that a statute of limitations should be tolled

if the plaintiff demonstrates that essential information could not be found by

diligent inquiry. We apply this rule to those who could not discover in time the

factual predicate of their claim. See, e.g., Pacheco v. Rice, 966 F.2d 904,

906-07 (5th Cir. 1992) (“Equitable tolling is appropriate where, despite all due

diligence, a plaintiff is unable to discover essential information bearing on the

existence of his claim.”). Congress already has addressed this in AEDPA's

statutory tolling provisions. See 28 U.S.C. § 2244(d)(1)(D). Fisher also points

to our reliance in Flores on St. Louis v. Texas Worker's Compensation Comm'n,

65 F.3d 43, 44 (5th Cir. 1995), where we found no inequity in applying a new,

shortened statute of limitations, in part because the plaintiff had notice of the

amended period. But Flores turns on allowing a habeas petitioner a reasonable

amount of time, not on notice. See Flores, 135 F.3d at 1004 (“It is essential

that such statutes allow a reasonable time after they take effect for the

commencement of suits upon existing causes of action.”) (quoting Wilson v.

Iseminger, 185 U.S. 55, 62 (1902)); id. (noting that shortened period in

St. Louis “still allowed the plaintiff a reasonable time within which to pursue

his claim in court.”). Here, Fisher's year was a reasonable amount of time,

despite the delay at the beginning.

11

for those who sleep on their rights.”).14 

In the right circumstances, a delay in receiving information

might call for equitable tollingSSsuch as if the prison did not

obtain copies of AEDPA for months and months, or if an essential

piece of information was delayed near the filing deadline. That is

not the case here. Fisher has not shown a rare and exceptional

circumstance that calls for equity to intervene.

2.

In the alternative, Fisher asks us to toll the limitation

period for the seventeen days he spent in a psychiatric ward. On

September 6, 1996, he was transferred for evaluation and care after

turning violent as a result of a post-traumatic stress syndrome

attack. He was confined, medicated, separated from his glasses and

hence rendered legally blind, and denied meaningful access to the
15 Fisher still needed to complete his state habeas application during this

time, but that does not excuse his tardiness. He had several years to complete

that petition, during which he sat on his federal rights. Even if he could not

file the state application until he received a transcript sometime in 1996, he

could have been almost ready to file when it arrived, leaving himself several

months to complete the § 2254 petition after his state application was denied.

12

courts. He was returned to his regular facility on September 23,

1996. Again, although equity sometimes might favor tolling in

similar circumstances, it does not here.

We have recognized the possibility that mental incompetency

might support equitable tolling of a limitation period. See Hood

v. Sears, Roebuck & Co., 168 F.3d 231, 232-33 (5th Cir. 1999) (and

cases cited therein). Combined with forced confinement and

medication, no access to legal materials, and the temporary loss of

one's glasses, a pro se petitioner such as Fisher simply cannot

pursue his legal rights during such a period. But a brief period

of incapacity during a one-year statute of limitations, even though

rare, does not necessarily warrant equitable tolling.

The period during which Fisher could not work on his federal

habeas petition, although outcome determinative here, is not a

significant length of time. More importantly, he still had over

six months to complete his federal habeas petition after his return

to his usual quarters.15 If this event had occurred shortly before

the required filing, Fisher would have a stronger case. But

considering it occurred at a time so remote to his deadline, and

absent a showing that he diligently pursued his application the

remainder of the time and still could not complete it on time,
16 Fisher's motion to strike the state's brief is DENIED.

13

equity does not require tolling.

AFFIRMED.16