UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 99-10414

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JOHN E. SCOTT,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

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Appeal from the United States District Court for the

Northern District of Texas

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September 11, 2000

Before REAVLEY, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

John E. Scott, a Texas state prisoner, appeals the district

court’s dismissal without prejudice of his federal habeas petition

for failure to exhaust state remedies. Finding that his petition

was time-barred, we deny relief.

I. FACTUAL AND PROCEDURAL HISTORY

On July 23, 1996, Scott pleaded guilty to possession with
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intent to deliver cocaine and was sentenced to 25 years of

imprisonment. Scott did not file a direct appeal.

On December 1, 1997, Scott filed a state habeas corpus

petition, alleging ineffective assistance of counsel, tainted

search warrants, a defective indictment, and insufficiency of the

evidence to support his conviction. Subsequently, Scott filed an

original application for a writ of mandamus in the Texas Court of

Criminal Appeals, complaining that his application for a state writ

of habeas corpus had not been forwarded to the Court of Criminal

Appeals. The Court of Criminal Appeals then issued an order that

resulted in the trial court designating the issues to be

considered. The trial court’s order further provided that it would

resolve the designated issues and enter findings of fact. 

On February 22, 1999, while his application for state habeas

was pending, Scott filed a petition for federal habeas corpus in

district court. He argued that the evidence used against him was

illegally obtained, that the indictment was defective because a

member of the grand jury did not live in the jurisdiction of the

court, that the evidence was insufficient because no drugs were

found on his person, and that counsel was ineffective for failing

to raise any of these issues. He subsequently filed a motion to

show cause in federal district court in which he stated that his

state petition was still pending and argued that he did not have to

demonstrate exhaustion of his state remedies because he could show

cause and prejudice. At that point his state petition had been
1 The magistrate judge thus did not serve the respondent with

Scott’s petition.

3

pending for fourteen months, and, thus, Scott argued, his federal

petition should be considered to prevent a fundamental miscarriage

of justice. 

The magistrate judge sua sponte found that all of Scott’s

claims were unexhausted and that, despite the length of time the

court was taking in reviewing Scott’s petition, Scott had not

demonstrated that the state corrective process was ineffective to

protect his rights.1 The magistrate judge therefore recommended

that Scott’s petition be dismissed without prejudice. Over Scott’s

objections, the district court adopted the findings and

recommendation of the magistrate judge and dismissed the petition

without prejudice for failure to exhaust. The district court

denied Scott’s motion for a certificate of appealability (COA).

This Court granted a COA on the issue whether Scott had exhausted

his state remedies and ordered the parties to brief the issue

whether Scott’s federal petition was timely.

II. ANALYSIS

We now determine whether Scott timely filed his petition for

federal habeas relief. Scott filed his federal petition on

February 22, 1999, which was after the April 24, 1996 effective

date of the Antiterrorism and Effective Death Penalty Act (AEDPA).

Accordingly, the AEDPA governs Scott’s federal petition. See
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Graham v. Johnson, 168 F.3d 762, 775 (5th Cir. 1999).

In relevant part, 28 U.S.C. § 2244 provides that:

(d)(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

judgment of a State court. The limitation

period shall run from the latest of--

(A) the date on which the judgment 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;

* * *

(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.

 On July 23, 1996, Scott was convicted in Texas state court

and received a sentence of 25 years of imprisonment. Rule 26.2(a)

of the Texas Rules of Appellate Procedure requires that a notice of

appeal must be filed within 30 days after the day sentence is

imposed. As previously set forth, Scott did not appeal his

conviction. His conviction therefore became final on August 22,

1996 (30 days after pleading guilty). 

Applying the above-quoted § 2244, the one-year period of

limitation Scott had in which to file a federal habeas petition
2 Procedural default and expiration of limitation period

arguments are non-jurisdictional affirmative defenses. See Kiser,

163 F.3d at 329.

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expired on August 23, 1997. The district court did not raise this

affirmative defense, and the respondent did not file a response to

Scott’s petition because it was never served with his petition.

Although this Court has held that district courts may sua sponte

raise the one-year limitation period under AEDPA, see Kiser v.

Johnson, 163 F.3d 326, 329 (5th Cir. 1999), we have not expressly

held that circuit courts have the authority to do so. 

We begin with the principle that this Court may affirm the

denial of habeas relief on any ground supported by the record. See

Fisher v. State of Texas, 169 F.3d 295, 299 (5th Cir. 1999). More

specifically, in Kiser, 163 F.3d at 329, we looked to “a long line

of precedent establishing the authority of courts to raise nonjurisdictional affirmative defenses sua sponte in habeas cases.”

(citations omitted). We also relied on our precedent that held the

affirmative defense of statute of limitations may be raised sua

sponte in prisoner’s civil actions under 28 U.S.C. § 1915. Id. 

Moreover, since Kiser, this Court has held that a Court of

Appeals may sua sponte conclude that a petitioner is procedurally

barred from raising a claim.2 Smith v. Johnson, 216 F.3d 521 (5th

Cir. 2000). We recognized that this Court previously had declined

to apply a procedural bar sua sponte, finding that the respondent

had waived the defense in district court. Id. (Fisher v. State of
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Texas, 169 F.3d 295, 300-02 (5th Cir. 1999)). However, we also

recognized that in Fisher, we had “expressly left open the

possibility that this court may, in the appropriate circumstances,

apply the procedural bar sua sponte when the state has waived the

defense in the district court.” We stated that the pertinent

concerns were whether the petitioner had notice of the issue and a

reasonable opportunity to argue against the bar, and whether the

state had “intentionally waived the defense.” Id. (citing Fisher,

169 F.3d at 301-02). Because the petitioner had been given notice

and an opportunity to argue against the bar and the state had not

intentionally waived the defense, we deemed it appropriate for this

Court to apply a procedural bar. 

In the instant case, the respondent certainly did not waive or

forfeit the affirmative defense of limitations in the district

court because it was not served with Scott’s petition due to the

district court’s decision to dismiss the petition for failure to

exhaust state remedies. Further, Scott was given notice of the

limitations issue when this Court issued a COA. Also, like the

petitioner in Smith, Scott has been given an opportunity to argue

against the limitations issue. We therefore hold that, under these

circumstances, it is proper for us to sua sponte apply the defense

of limitations under AEDPA. 

Scott argues that he is entitled to equitable tolling.

Equitable tolling is appropriate in “rare and exceptional
3 We note that an inadequate law library does not constitute

a “rare and exceptional” circumstance warranting equitable tolling.

Felder v. Johnson, 204 F.3d 168, 171-73 (5th Cir. 1999).

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circumstances.” Fisher v. Johnson, 174 F.3d 710, 712 (5th Cir.

1999). He claims that the state created an impediment to his

filing a state habeas application because the state (1) confiscated

his legal materials on August 5, 1996, and (2) the legal library

was inadequate. Scott admits, however, that such impediments were

removed as of February 25, 1997, which is approximately six months

prior to the expiration of the limitation period. Accordingly,

these arguments do not establish that Scott is entitled to

equitable tolling. See Coleman v. Johnson, 184 F.3d 398, 401 (5th

Cir. 1999) (explaining that for equitable tolling to apply, the

petitioner must diligently pursue relief).3 Finally, Scott’s state

habeas application did not toll the limitation period under §

2244(d)(2) because it was not filed until after the period of

limitation had expired. 

For the above reasons, we conclude that Scott’s federal habeas

petition is time-barred. We therefore MODIFY the district court’s

judgment and DISMISS the petition WITH PREJUDICE.