*Circuit Judge of the Eighth Circuit, sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-20118

 

ORIN LEE MOLO,

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 Southern District of Texas

 

March 28, 2000

Before POLITZ, JOHN R. GIBSON,* and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

The district court dismissed Orin Lee Molo's habeas petition

as time-barred. Molo appeals that dismissal, offering a variety of

arguments to invoke equitable tolling. Finding none of these

adequate, we AFFIRM the dismissal of Molo's habeas petition.

I.

Molo was convicted of robbery by assault on October 2, 1968.

His punishment was enhanced for a previous felony conviction, and

he was sentenced to life imprisonment. He claims that he is

actually innocent of the offense because he was insane at the time

he committed it. He demanded money and food from people while
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waiting in a parking lot for his mother and doctor to discuss his

psychiatric condition. He raised an insanity defense, and there

was competing psychiatric testimony on the sanity issue. Two

jurors testified at Molo's motion for a new trial that they

believed he was insane but voted to convict because they thought he

should be confined to receive treatment for mental illness. 

Molo claims that no appellate court has ever reviewed his

claim on the merits. The Texas Court of Criminal Appeals affirmed

Molo's conviction on January 7, 1970 because his attorney failed to

file a timely appellate brief. His subsequent attorney raised a

jury misconduct claim in a second application for writ of habeas

corpus February 5, 1975, which was denied without written order.

Molo filed a pro se application for writ of habeas corpus on

November 17, 1975, asserting an ineffective assistance of counsel

claim and a claim that he was denied the presumption of innocence

because he was dressed in prisoner's clothing at his trial. That

application too was denied without written order. Molo filed

another state habeas application through his present counsel on

December 10, 1997, which was dismissed as a successive writ.

Molo filed a federal habeas petition on August 25, 1998. The

district court dismissed the petition as barred by the AEDPA's

statute of limitations set forth in 28 U.S.C. § 2244(d).

Recognizing that he had missed the filing deadline, Molo urged that

the exceptional circumstances of the case justified equitable

tolling. The district court held that equitable tolling was

available only when the petitioner had been prevented from filing
 

1See Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.

1999)(noting that de novo review applies where district court

denies equitable tolling as a matter of law). In the instant case,

the district court declined equitable tolling as an exercise of

discretion, finding that Molo's circumstances were not "rare and

exceptional."

 

2Davis v. Johnson, 158 F.3d 806, 807 (5th Cir. 1998).

 

3See Davis, 158 F.3d at 811.

 

4Flanagan v. Johnson, 154 F.3d 196, 201 (5th Cir. 1998).

 

5See Felder v. Johnson, No. 98-21050, 2000 WL 144178, at *2

(5th Cir. Feb. 9, 2000).

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on time, and that Molo made no such claim. The district court

granted Molo a certificate of appealability on the question whether

his were rare and exceptional circumstances that would justify

equitable tolling. Molo timely appealed.

II.

We review the district court's denial of equitable tolling for

abuse of discretion.1

The one-year limitations period of the AEDPA is a statute of

limitations that is not jurisdictional and is subject to equitable

tolling.2 Equitable tolling, however, is permissible only under

"rare and exceptional" circumstances.3 Petitioners whose

convictions became final before the effective date of the AEDPA

were given a grace period of one year to file their federal habeas

petitions, rendering them timely if filed by April 27, 1997.4 None

of the reasons Molo offers justifies tolling.

Molo argues that the limitations period should be tolled

because he is innocent.5 Without deciding whether proof of factual

innocence would toll the limitations period, we find that Molo does
 

6See Miller v. Marr, 141 F.3d 976, 977 (10th Cir.

1998)(quoting Swain v. Pressley, 430 U.S. 372, 381 (1977)).

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not show that he is factually innocent. Three physicians testified

at Molo's trial. Molo's family doctor, who had treated him for

mental illness, testified that Molo was mentally ill and should

receive treatment. Two Harris County, Texas, psychiatrists

testified that Molo was sane at the time of the offense. Molo

argues that because the psychiatrists finding him sane examined him

one and seven weeks after the offense, respectively, and his family

physician examined him immediately prior to the offense, the

evidence was insufficient for the jury to find him sane. We

disagree. Molo has not shown that he was factually innocent.

Molo argues that failing to toll the AEDPA's statute of

limitations in his case will violate the Suspension Clause of Art.

I, § 9. The 1-year limitations period of the AEDPA does not

violate the Suspension Clause unless it "renders the habeas remedy

'inadequate or ineffective' to test the legality of detention."6

Molo has not shown how the limitations period made the habeas

remedy inadequate or ineffective for him, since nothing prevented

him from filing a petition before the limitations period expired.

Molo argues that the district court should have invoked

equitable tolling because he was denied any appeal of his case

through ineffective assistance of counsel and state courts'

erroneous application of state law. Whether Molo had effective

assistance of counsel on direct appeal in state court is not

relevant to the question of tolling the AEDPA's statute of
 

7See Evitts v. Lucey, 469 U.S. 387, 395 (1985).

 

8Molo argues that the evidence was insufficient to convict

him, and that his conviction likely would have been reversed on

direct appeal. Even if that is so, his ineffective assistance of

counsel claim does not toll the AEDPA's statute of limitations.

 

9Molo argues that the Texas Court of Criminal Appeals erred

when it denied his 1975 pro se application for writ of habeas

corpus under Ex parte Raley, 528 S.W.2d 257 (Tex. Crim. App. 1975,

no pet.), overruled on other grounds, Hurley v. State, 606 S.W.2d

887, 889 (Tex. Crim. App. 1980, pet. ref'd). Federal habeas review

does not extend to state court conclusions of state law. See

Fairman v. Anderson, 188 F.3d 635, 641 (5th Cir. 1999).

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limitations. A criminal defendant has a right to effective

assistance of counsel on a first appeal as of right.7 An alleged

violation of that right does not toll the AEDPA's statute of

limitations.8 The same is so of his claim that the Texas Court of

Criminal Appeals erred under state law when it denied his out-oftime appeal.9 

Neither does Molo's jury misconduct claim toll the AEDPA's

limitations period. At a hearing on his motion for a new trial,

two jurors testified that they believed Molo was insane but voted

to convict so he would be confined to receive treatment for mental

illness. The facts underlying this claim did not prevent Molo from

filing a federal habeas petition until the limitations period

expired.

III.

None of the reasons Molo advances are sufficient to justify

tolling of the AEDPA's limitations period. We affirm the district

court's dismissal of his petition as time-barred.

AFFIRMED.