* 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opinion should not be published and is not precedent except under the limited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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-40878

Summary Calendar

Civil Action No. 6:99-CV-209

DANNY GENE COFER,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court for the

Eastern District of Texas

July 14, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appellant Cofer was granted a COA to appeal whether his

late filing of a federal habeas petition can be justified by the

doctrine of equitable tolling. Having considered the briefs,

record and opinions of the magistrate judge and district judge, we

reject Cofer’s contention and affirm the dismissal of his untimely

petition.
1 Cofer also briefs the merits of the issues raised in his habeas

claim, but these were not discussed by the district court and are not on appeal

before us. Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). 

2

Cofer missed the AEDPA-required deadline for filing his

federal habeas petition by more than two months, even if the filing

dates are considered in his favor. He does not deny this, but he

asserts that his state court records were unjustifiably kept out of

his possession for five months because of postal service

mishandling, that the state court records were his sole source of

information, and that delay caused by prison and postal officials

prevented him from meeting the federal deadline. In short, Cofer

contends that he has demonstrated an exceptional circumstance

warranting equitable tolling.1 

The district court’s refusal to invoke the doctrine of

equitable tolling is reviewed for abuse of discretion. Ott v.

Johnson, 192 F.3d 510, 513 (5th Cir. 1999), petition for cert.

filed, (U.S. March 2, 2000) (No. 99-1476). As Ott states,

equitable tolling is applied only when the relevant facts present

sufficiently “rare and exceptional circumstances” that would

warrant application of the doctrine. Id. Equitable tolling

applies principally where the plaintiff is actively misled by the

defendant about the cause of action or is prevented in some

extraordinary manner from asserting his rights. Id. Excusable

neglect does not support equitable tolling. Id. at 513-14. In

addition, in order to justify equitable tolling, the petitioner
3

must have acted diligently in guarding his rights. See Coleman v.

Johnson, 184 F.3d 398, 403 (5th Cir. 1999). 

This case presents neither the “rare and exceptional

circumstances” nor sufficient evidence of Cofer’s diligence to

warrant equitable tolling. Despite postal officials’ assumed delay

in transmitting Cofer his state court records, he still received

them in August 1998, well within the initial one-year federal

habeas deadline (January 5, 1999). Offsetting the delay caused by

third parties is Cofer’s lack of diligence in his own behalf.

Cofer waited almost two months after receiving the state mandate

affirming his conviction and more than six months after the court

of appeals confirmed his conviction before even ordering the state

court records for use in habeas proceedings. He then delayed

filing his state habeas petition until five months after obtaining

the state court records in August 1998. Even after the denial of

his state petition, Cofer waited another month to file a federal

habeas petition. 

The totality of these circumstances does not afford a

basis for the rare and unusual relief of equitable tolling, as the

district court held. Accordingly, the judgment dismissing Cofer’s

habeas petition is AFFIRMED.