1 See Ott v. State , 627 S.W.2d 218 (Tex. App. 1981, pet. ref’d). UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-41211

GREGORY ARTHUR OTT,

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

October 21, 1999

Before POLITZ, DAVIS, and STEWART, Circuit Judges.

POLITZ, Circuit Judge:

Texas inmate Gregory Arthur Ott appeals the district cou rt’s denial of his

habeas corpus petition under 28 U.S. C. § 2254. For the reasons assigned, we

affirm.

BACKGROUND

In 1978, Ott was convicted of murdering a Texas Ranger and was sentenced

to life imprisonment. This conviction was affirmed on direct appeal and became

final in July 1982. 1 On April 23, 1997, Ott, represented by counsel, filed a state

habeas corpus application, challenging issues relating to the rescission of his parole2 The April 1997 habeas petition was actually the second state habeas application. The

first state habeas action was filed in 1989. That habeas petition, which raised different issues

from the present petition , is not in the record and is not relevant to the disposition of this

case.

2 certificate and the validity of his conviction. 2 On September 17, 1997, the Texas

Court of Criminal Appeals denied the application without written order.

On Tuesday, September 23, 1997, Ott, represented by counsel, filed a § 2254

petition raising the same issues as in the state habeas application. Counsel stated

that on the prior Saturday, September 20, 1997, he received a “white card” from the

Texas Court of Crimina l Appeals postmarked September 18, 1997, noting that Ott’s

habeas application had been denied. Counsel st a ted that he mailed the § 2254

application for filing on Monday, September 22, 1997, the next business day after

receiving notification.

Adopting a report and recommendation by the magistrate judge, the district

court found that Ott had until April 24, 1997 to timely file a § 2254 application and

that the filing of the state court action on April 23, 1997 tolled the period for one

day. The court determined that the filing on September 23, 1997, after the denial

of the state application on September 17, 1997, was untimely. It also rejected Ott’s

argument that the limitations period should be tolled during the time allotted to

seek a petition for certiorari from the denial of his state habeas application. Finally,

the district court determined that equitable tolling should not apply in this case as

Ott had waited nineteen years before bringing his claims.

After dismissing his petition as time-barred, the district court granted a

certificate of appealability (“COA”) limited to the issues regarding the limitations3 Although § 2244(d)(1) lists three other alternative events from which the limitations

period would begin, Ott agrees that the date of final judgment in § 2244(d)(1)(A) is the only

applicable provision here.

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

3 period and equitable tolling.

ANALYSIS

Under the Anti-Terrorism and Effective Dea th Penalty Act of 1996

(“AEDPA”), there is a one-year limitations period for filing a writ of habeas corpus

by a person in state custody. Under 28 U.S.C. § 2244(d)(1)(A), the limitations

period commences from “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.” 3

Moreover, “[t]he time during whi ch a properly filed application for State postconviction or other collateral review wi th respect to the pertinent judgment or claim

is pending shall not be counted toward any period of limit ation under this

subsection.” 28 U.S.C. § 2244(d)(2).

For convictions final before the effective date of the AEDPA, we have

applied a one-year grace period allowing habeas petitioners until April 24, 1997 to

file their claims. 4 As noted, however, under § 2244(d)(2) the time between Ott’s

filing of his state habeas application and its denial does not count against the oneyear limitations period.

Ott filed his state habeas application on April 23, 1997, one day before the

expiration of the grace period. The limitations period expired on Friday,

September 19, 1997, one day after the Texas Court of Criminal Appeals denied the5 On appeal, Ott abandons the argument made in the district court that the three-day

allowance

for acts conducted by mail, s ee Fed. R. Civ. P. 6(e), extended the limitations

period.

6 We note that although Ott has briefed six issues concerning the suspension, equal

protection, and due process clauses of the constitution, these issues were not included in the

COA granted

by the district court. Even though Ott has briefed the issues, he has not

explicitly requested that we broaden the district court’s COA. Without an express request

to broaden the COA, one which we approved, we will not consider issues on which a COA

was denied. See United States v. Kimler , 150 F.3d 429 (5th Cir. 1998).

7 See United States v. Fitch , 137 F.3d 277 (5th Cir. 1998).

4 habeas application on September 18 , 1997. 5 Ott asserts two bases that would

prevent his September 23, 1997 application from being deemed untimely filed.

First, he conten ds that the ninety days in which a state habeas petitioner may

petition the United States Supreme Court for a writ of certiorari, even if no petition

for certiorari is filed, should toll the limitations period. Second, he asserts that the

limitations period in this case shoul d be extended by the doctrine of equitable

tolling. 6

I

Ott first contends that § 2244(d)(2), which tolls the limitations period while

a “properly filed application for State post-conviction or other collateral review”

is pending, includes the ninety days in which a state habeas petitioner may file a

petition for writ of certiorari with the United States Supreme Court. He maintains

that expiration of the limitations period prior to the time in whi c h he could seek

Supreme Court review would unfairly penalize those who desire to petition for

certiorari. We review this question of statutory construction de novo

. 7

We have not previously had an opportunity to consider this issue. We now8 S ee Rhine v. Boone

, No. 98-6353, 1999 WL 459312, at * 2-3 (10th Cir. July 7, 1999).

See also United States v. DeTella

, 6 F. Supp. 2d 780 (N.D. Ill. 1998) (holding that time for

seeking certiorari with Supreme Court does not toll limitations period under § 2244(d)(2)).

9 Hohn v. United States , 118 S. Ct. 1969 (1998).

1 0 S ee Rhine , 1999 WL 459312, at * 3 (holding that “State” modifies both the phrase

“post-conviction review” and the phrase “other collateral review”).

5 reject same. We agree with our colleagues in the Tenth Circuit that § 2244(d)(2)

does not toll the limitations period from the time of denial of state habeas relief by

the state high court until the time in which a petitioner could have petitioned the

United States Supreme Court for certiorari. 8

First, unlike § 2244(d)(1)(A), which takes into account the time for filing a

certiorari petition in determining the finality of a conviction on direct review, §

2244(d)(2) contains no such provision. Rather, § 2244(d)(2) only tolls the period

for a properly filed petition for “State post-conviction or other collateral review.”

It is a fundamental tenet of statutory construction that Congress intended to exclude

language included in one section of a statute, but omitted from an o ther section. 9

We conclude and hold that a petition for writ of certiorari to the Supreme Court is

not an application for “State” review that would toll the limitations period. 10

Second, we also note that judicial efficiency does not require a petitioner to

begin federal habeas proceedings until the state conviction becomes final upon

direct review, which occurs upon denial of certiorari by the Supreme Court or

expiration of the period for seeking certiorari. For state post-conviction

proceedings, however, t he post-conviction application becomes final after a

decision by the state’s high court. Requesting relief from the Supreme Court is not11 See id.

1 2 D avis v. Johnson

, 158 F.3d 806 (5th Cir. 1998), cert. denied

, 119 S. Ct. 1474 (1999).

13 Fisher v. Johnson , 174 F.3d 710 (5th Cir. 1999).

14 Davis , 158 F.3d at 811.

6 necessary for prosecuting state habeas relief and is irrelevant to federal habeas

jurisdiction. Thus, unlike direct review, there is no judicial interest in habeas

proceedings for tolling the limitations period fo r Supreme Court certiorari

petitions. 11 Accordingly, the period for seeking a petition for certiorari does not toll

Ott’s limitations period under § 2244(d)(2).

II

Ott next maintains that the doctrine of equitable tolling shoul d extend the

limitation s period. We have held that the AEDPA’s limitations period is not

jurisdictional, but is subject to equitable tolling principles. 12 We review the district

court’s decision not to invoke the doctrine of equitable tolling for abuse of

discretion. 13

Although cautious no t to apply the statute of limitations too harshly, we

recognize that the equitable tolling doctr ine is to be applied only if the relevant

facts present sufficiently “rare and exceptional circumstances” that would warrant

application of the doctrine. 14 We recently explained that 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,” and1 5 C oleman v. Johnson

, No. 98-10394, 1999 WL 598607, at * 4 (5th Cir. Aug. 3, 1999)

(quoting Rashidi v. America President Lines , 96 F.3d 124,128 (5th Cir. 1996)).

7 noted that “excusable neglect” does not support equitable tolling. 15

Ott contends that it would b e inequitable to apply the limitations period

because he mailed his federal habeas petition for fili ng on the first business day

after receiving notice of the denial of the state application. Moreover, Ott asserts

that Texas created an impediment to the ti m ely filing of his petition by its

notification of habeas denials through mailed postcards.

We find no error in the district court’s decision not to apply the doctrine of

equitable tolling to the facts of this case. Ott was represented by counsel for both

his state and federal habeas applications. As the district court noted, Ott did not

challenge the parole board’s actions until some nineteen years after the underlying

conviction and fifteen years after the conviction beca me final. Further, we

underscore that the state habeas application was not filed until one day before the

expiratio n of the AEDPA’s one-year grace period, an action that necessarily

mandated a swift filing of the federal habeas application following the denial of the

state petition. This was a matter totally within the control of Ott. The state

application readily could have been filed a few days earlier, allowing an adequate

period for the filing of the federal petition after final denial of the state application.

Accordingly, we find that these are not “rare and exceptional” circumstances in

which equitable tolling is warranted.

Because Ott’s fed eral habeas corpus petition was not timely filed and

because equitable tolling does not appl y in this case, the judgment appealed is8

AFFIRMED.