UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 98-11358

_______________________

ANDREW FLORES CANTU-TZIN,

Petitioner-Appellant,

versus

GARY JOHNSON, DIRECTOR

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________ December 2, 1998

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Cantu is scheduled for execution by the State

of Texas on December 3, 1998, for the June, 1990 murder-for-hire of

three members of an Abilene family. He has filed neither state nor

federal habeas petitions seeking to vacate his capital murder

conviction. Instead, he filed in the federal district court only

a motion to stay execution and for appointment of counsel, and

those requests were in itiated after his right to obtain federal

relief has facially prescribed.

Cantu has moved this court for a stay of execution and

appointment of counsel on appeal. We granted the motion for1 On November 30, 1998, Mandy Welch and A. Richard Ellis were

appointed as counsel on appeal for these purposes.

2 McFarland v. Scott , 512 U.S. 849, 114 S.Ct. 2568 (1994).

2 appointment of counsel on appeal, as the sole issue with which

counsel is here concerned is the applica bility of the statutory

time bar. 1

Cantu’s petition for federal habeas relief indisputably

falls outside the one-year limit prescribed by Congress in the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) in order to

bring regularity and finality to federal habeas proceedings. Cantu

does not contest that his petition is facially untimely. Instead,

he argues that the district court erred by failing to appoint him

counsel under 21 U.S.C. § 848(q)(4)(B) and that it further erred in

ruling on the limitations issues without allowing Cantu an

opportunity to respond and without appointing counsel. Three

questions are raised by Cantu’s position: (1) whether the McFarland

case requires appointment of counsel for a death-row prisoner whose

petition is time-barred by AEDPA; 2 (2) whether, u nder a narrow

reading of McFarland

, § 848(q)(4)(B) counseled appointment of

counsel at least concerning the possibility of equitable tolling of

the statute of limitations; and (3) whether, given the undisputed

facts surrounding the progress of Cantu’s case in state and federal

courts, no ground for equitable tolling or for a stay of execution

exists.

Our conclusions may be succinctly stated. First, neither

McFarland nor § 8 48(q)(4)(B) requires appointment of counsel for3 Counsel was appointed for him in a motion for rehearing in the

Texas Court of Criminal Appeals and on the petition for certiorari.

4 In 1995, Cantu filed a motion for stay and appointment of

counsel in federal district court, following the procedure set

forth in McFarland

, 512 U .S. at 852 n.1, 114 S. Ct. at 2570 n.1.

The case was voluntarily dismissed, however, when the State of

Texas passed a law affording cour t-appointed counsel for state

habeas proceedings to indigent death-row inmates.

3 the wholly futile enterprise of addressing the merits of a timebarred habeas petition. Second, the court may appoint counsel to

represe nt a death-row inmate for purposes of litigating the

applicability of the limitations bar only, with suf ficient time

constraints to maintain t he integrity of the limitation period.

Third, where, as in this case, the facts that might be relevant to

equitable tolling of limitations are undisputed and are wholly

unfavorable to the petitioner, the court may deny a stay. We

therefore deny the stay of execution.

BACKGROUND

Cantu is no stranger to self-representation. He

dismissed his court-appointed attorney and represented himself on

direct appeal to the Texas Court of Criminal Appeals. 3 His direct

appeals terminated with the denial of certi orari by the Supreme

Court in February, 1995. S ee Cantu v. Texas

, 513 U.S. 1171, 115

S.Ct. 1145.

Cantu n ever filed a petition for state habeas relief.

Rather, after eluding the first execution date, 4 he sought

appointment of counsel in the state court system. His first

attorney was forced to withdraw because of a conflict of interest,4

but his second attorney cited “irreconcilable differences” with

Cantu and was permitted to withdraw. Cantu requested discharge of

Ingalsbe, his third court-appointed attorney, because Cantu thought

for v arious reasons that Ingalsbe was not representing him

effectively. A state court hearing was held in August 1997 in

response to Cantu’s self-styled “Motion for the Dismissal of State

Habeas Counsel and for Self-Representation.” The state trial court

found that Cantu preferred to proceed pro se if his o nly choices

were to continue to be represented by Ingalsbe or by any other

attorney from Abilene; that Cantu did not want to be represented by

Ingalsbe or any other attorney from Abilene; that Cantu was capable

of representing himself in a post-conviction proceeding; and that

Cantu knowingly and voluntarily waived the right to counsel if his

only other choices were to be represented by Ingalsbe or another

Abilene attorney. These findings, referred to the Texas Court of

Criminal Appeals, resulte d in an order discharging Ingalsbe on

September 3, 1997, and permitting Cantu to proceed pro se

.

After the September 3, 1997 order, Cantu and a would-be

habeas attorne y filed motions requesting the Texas Court of

Criminal Appeals to reconsider appoin tment of counsel, but their

motions were denied on November 19, 1997. Cantu then did nothing.

On October 14, 1998, more than a year after Cantu had

been instructed to proceed pro se , the state convicting court set

his execution date for December 3, 1998. Cantu filed a motion for

appointment of counsel and stay of execution in the federal

district court on November 3, 1998. Relying on M cFarland

, 512 U.S.5

849, 114 S. Ct. 2568, Cantu asser ted his right to counsel in

a dvance of filing a habeas petition on the merits. The state

responded by urging application of AEDPA’s one-year limitation on

federal habeas petitions, 28 U.S.C. § 2244(d)(1), and the

consequent in applicability of M cFarland

. The state did not,

however, contest the appointment of counsel solely for the purpose

of representing Cantu in the resolut ion of the statute of

limitations issue.

On November 14, 1998, the district court entered an order

finding that Cantu “engaged in dilatory tactics which allowed the

one-year limitations period established by the Anti-Terrorism and

Effective Death Penalty Act to expire.” C antu v. Johnson

, No. 98-

CV-236-c (N.D. Tex. Nov. 14, 1998) (order denying appointment of

counsel and stay of execution). The court further concluded that

Cantu had “‘flout[ed] the available processes’ wi th his inaction

and dilatory tactics.” I d

., quoting McFarland

, 512 U.S. at 858,

114 S. Ct. at 2573. On this basis, the court denied the motions

for appointment of counsel and for stay of execution, and it denied

a certificate of appealability.

DISCUSSION

There can be no doubt that Cantu’s attempt to invoke

federal habeas jurisdiction is time-barred. The AEDPA, which

became effective April 24, 1996, enacted a one-year period of

limitation for federal habeas proceedings that runs, unless tolled,

from the date on which the petitioner’s conviction became final at

the conclusion of direct review or during the pendency of a5 Other triggering provisions for the one-year bar, contained in

subsections (B), (C), and (D) of § 2244(d)(1), are not material

here.

6 “properly fil ed application for State post-conviction or other

collateral review.” § 2244(d)(2). 28 U.S.C. § 2244(d)(1)(A). 5

Cantu’s judgment became final on February 21, 1995. A strict

construction of the statute would have prevented his seeking

federal habeas relief after February 21, 1996, two months prior to

enactment of the AEDPA. The Fifth Circuit has, however, permitted

petitioners a “reasonable time” afte r enactment of the statute,

i.e. until April 24, 1997, to file their habeas applications. S ee

Flanagan v. Johnson , 154 F.3d 196, 200 (5th Cir. 1998). Further,

in “rare and exceptional circumstances,” this court has held that

the one year limitations period may be equitably tolled. D avis v.

Johnson

, 158 F.3d 806, (5th Cir. 1998), petition for rehearing

pending.

In an add itional twist favorable to Cantu, the Texas

Attorney General’s office agreed in a class actio n settlement to

toll the time from request until appointment of state habeas

counsel in the Texas Court o f Criminal Appeals, for petitioners

like Cantu who did not have a state writ of habeas corpus pending

on December 2, 1996. P yles v. Morales

, No. 396-CV-2838-D (N.D.Tex.

Dec. 2, 1996) (Agreed Order of Dismissal Without Prejudice). A

generous reading of the Pyles agreement suggests that Cantu’s state

proceedings regarding appointment of counsel would not be counted

for limitatio ns purposes until the Court of Criminal Appeals6 Other interpretations of the Pyles agreement are possible. For

instance, it could be decided that the tolling t here authorized

ceased to run upon the appointment of Cantu’s second habeas

counsel, who was later dismissed for “irreconcilable differences.”

If so, the AEDPA limitation would have ended several months earlier

than the date we have calculated. As the State suggests, it is

unnecessary for us to construe the impact of the Pyles agreement

definitively, and we have not done so.

7 ordered Cantu to proceed p ro se on September 3, 1997. 6 Applying

the AEDPA limitations period of one year from that date, it could

be determined that Cantu could have filed a timely federal petition

for writ of habeas corpus until September 3, 1998.

Instead , from September 3, 1997 until today, Cantu has

never filed a petition for habeas relief in either state or federal

court. The express AEDPA limitation has clearly expired.

Applying the McFarland decision with full force to this

case cannot be correct. In M cFarland

, the Supreme Court

interpreted 28 U.S.C. § 848(q)(4)(B), the statute affording courtappointed counsel to death row habeas petitioners, both to initiate

a federal habeas proceeding and to authorize in most instances, the

gra nting of a stay of execution even before a petition on the

merits had be en filed. M cFarland

, however, predates AEDPA’s

passage of a spec ific habeas limitation period, and even though

AEDPA did not expressly modify the death row petitioner’s right to

counsel, it took the more onerous step of cutting off the

availability of any federal court review after the limitation has

run. Appointment of counsel for a capital-convicted defendant

would be a futile gesture if the petitioner is time-barred from

seeking federal habeas relief. Moreover, granting a stay of8

execution in such circumstances would directly undermine Congress’s

purpose in passing a statute of limitations.

Indeed, confirmation that a statutory limitations period

should be enforced appears in the Supreme Court’s later decision in

Lonchar v. Thomas

, 517 U.S. 314, 116 S.Ct. 1293 (1996). The tenor

of the majority discussion in Lonchar is that federal courts should

not intervene to create equitable reasons for denying stays of

execution when federal law and the habeas rules have prescribed

principles applicable to the complex mix of equ ities in capital

cases. S ee id. 517 U.S. at 326-27, 116 S. Ct. at 1301. By the

same token, however, when Congress has stepped in to balance the

competing interests, as it did in AEDPA, courts should be loath to

evade that balance. McFarland , which represents a judicial gloss

on the appointment-of-counsel statute, should not impede

application of a later-enacted limitation period on federal habeas

relief.

This is not to say that death row inmates may never file

initial federal habeas petitions more than one year after the

conclusion of direct or collateral review proceedings. First, the

conditions to the one-year bar contained in § 2244(d)(1) may apply.

See supra note 5. Second, this court has recently held that the

limitations period of AEDPA is subject to “eq uitable tolling” in

“rare and exceptional circumstances.” D avis

, 158 F.3d at

___.

Where a petition lends itself to the interpretation that rare and

exceptional circumstance may pertain, and hence that the petitioner

is entitled to seek federal relief on the merits, a narrower9

reading of McFarland may require appointment of counsel solely to

resolve limitations questions. While the delay occasioned by

appointment of counsel and determining the application of the

statute of limitations would marginally infringe the AEDPA limit,

these delays fulfill a lo ng-recognized exception to limitations

statutes. S ee id. 158 F.3d at . Further, appointment of

counsel on such a limited basis may be handled expeditiously by the

trial court and with due regard for Congress’s intent to

circumscribe federal habeas relief.

But even if we incorrectly surmise that a broad reading

of McFarland is generally inconsistent with the enactment of

§ 2244(d), McFarland still does not guarantee an automatic stay of

execution for capital defendants. While M cFarland ensures a right

to counsel that “necessarily includes a right for that counsel

meaningfully to research and present a defendant’s habeas claims,”

it also emphasizes that the grant of a stay is ultimately

discretionary. M cFarland

, 512 U.S. at 858, 114 S. Ct. at 2573. As

a result,

If a dilatory capital defendant inexcusably

ignores this opportunity [to secure counsel]

and flouts the available processes, a federal

court presumably would not abuse its

discretion in denying a stay of execution.

Id.

The record of proceedings in the state court, which was

furnished to the district court and this court during the course of

Cantu’s attempt to secure federal habeas relief, demonstrates his10

disdain for and lack of cooperation with state access-to- counsel

procedures and the AEDPA deadline.

Over thirteen months, from August 1996 to September 1997,

Cantu was appointed three separate at torneys to represent him in

state post-conviction proceedings. One cited irreconcilable

differences with Cantu. The last one was dismissed at Cantu’s

request. Cantu insisted on trying to call the shots with the state

courts when he insisted that Ingalsbe, the third lawyer, should no

longer represent him, and further that no attor ney from Abilene

should be appointed to represent him, although the crime occurred

in Abilene and the convicting court was located there, and that he

would rather represent himself than endure those alternatives. He

should not be heard to complain that the Texas courts found him

capable of se lf-representation and then allowed him to undertake

it, as he requested exactly that relief and had previously

dismissed a court-appoint ed counsel and represented himself on

direct appeal. Yet Cantu persisted in complaints that a fourth

lawyer should be appointed for him. Cantu thus flouted the state

court’s procedures and passed up the opportunity to pursue habeas

relief on the merits.

Cantu’s appellate counsel suggest that fact issues exist

that would predicate equitable tolling on the state’s failure to

appoint Cantu a competent habeas counsel. He supports this

position in two ways. First, he implies that Ingalsbe, the third

state-app ointed attorney, was incompetent. This attack grossly

mischaracterizes Ingalsbe’s experience as a district attorney,11

criminal law practition er for over 20 years, 1967 graduate of

Baylor Law, and participant i n capital and habeas cases. As the

state court found, Ingalsbe had obtained Cantu’s file from the

Texas Resource Center and was reviewing it before Cantu moved to

dismiss him. He testified that he planned to file a habeas

petition within the deadline set by the Texas Court of Criminal

Appeals.

Second, Cantu assaults the Texas courts’ findings that he

was capable of self-representation and voluntar ily elected that

option rather than to have Ingalsbe or any Abilene attorney

represent him. Inmates are not entitled to court-appointed counsel

of their choice. U nited States v. Breeland

, 53 F.3d 100, 106 n.11

(5th Cir. 1995); Malcom v. State , 628 S.W.2d 790, 791 (Tex. Crim.

App. 1982). Cantu chose self-representation rather than the choice

he was offered by the state. The circumstances that Cantu alleges

to support equitable tolling thus rest on an incomplete recitation

of the record , backtracking on his expressed choice of selfrepresentation, and a misunde rstanding of an inmate’s ability to

control the choice of court-appointed counsel.

His approach to the federal courts has been no more

praisewor thy. A bevy of pleadings filed with the Texas Court of

Criminal Appeals throughout 1997 demonstrates that Cantu was well

aware of the AEDPA limitation period for seeking federal habeas

relief. S ee Appellant’s Objection to Court’s September 2, 1997

Findings, Record at Tab 16 n.1, Cantu v. Texas (No. 71,314);

Hearing Requesting Self Representation, Record at Tab 13 p. 6 (No.12

10,172-B); Motion to File Skeletal Application for Writ of Habeas

Corpus, Record at Tab 21 p.6-7 (No. 71,314). He was also aware of

the Pyl es agreement extending the AEDPA limit under certain

circumstances. S ee Record at Tab 21 p.6 (No. 71,314). Once he was

ordered to proceed in habeas pro se, however, Cantu did nothing.

He did not preserve his collateral review rights in state court,

which would have tolled the AEDPA limitation, and he made no effort

to obtain federal relief for over a year, until after an execution

date had been scheduled and after the AEDPA deadline had

unquestionably passed.

Cantu’s course of con duct demands application of the

excep tion to M cFarland

, if McFarland would otherwise apply here.

Further, it contradicts any possibility that equitable

circumstances exist which might authorize a tolling of the AEDPA

limitation period.

For all of these reasons, we conclude that any attempt by

Cantu to seek federal habeas relief at this point is time-barred

under the limit expressly contained in AEDPA, this court’s caselaw,

a nd a generous interpretation of the P yles agreement; that Cantu

was not entitled to appointment of counsel on the merits of a

habeas peti tion, although he may have been entitled to be

represented by counsel for the sole purpose of li tigating the

limitation issue; and that the fully-develo ped record of state

proceedings demonstrates the unavailability of equitable tolling of

the AEDPA limitations period.13 We DENY Cantu’s request for a stay of execution; motion

for appointment of counsel on appeal, limited to the issues before

us is GRANTED

. To the extent a certificate of appealability is

necessary, althoug h it was not requested by petitioner, it is

DENIED

.

ENDRECORD14

BENAVIDES, Circuit Judge, dissenting:

The motion by Andrew Flores Cantu-Tzin (“Cantu”) for

appointment of counsel and a stay of his execution pending his

filing of a federal habeas petition was denied by the district

court because the court found that Cantu “engaged in dilatory

tactics which allowed the one-year limitations period established

by the Anti-terrorism and Effective Death Penalty Act to expire.”

The majority affirms that decision based on its finding that

appointing counsel and granting a stay in order to address the

merits of Cantu’s time-barred habeas petition would be a “wholly

futile enterprise” because there is no possibility that equitable

circumstances exist which might authorize a tolling of the AEDPA

limitation period. Although the majority’s ultimate conclusion

that Cantu’s habeas petition would be barred by AEDPA might be

correct, I dissent because the majority makes this determination

without Cantu having properly been granted his statutory right to

the assistance of counsel.

In McFarland v. Scott , 512 U.S. 849, 114 S. Ct. 2568 (1994),

the Supreme Court construed 21 U.S.C. § 848(q)(4)(B), which

entitles indigent capital defendants to representation on federal

collateral review, as directing that “the right to appointed

counsel adheres prior to the filing of a formal, legally

sufficient habeas corpus petition.” Id. at 855, 114 S. Ct. at

2572. Neither the Court in McFarland nor the text of §

848(q)(4)(B) conditions this right to assistance of counsel in15

any way, and it was improper for the district court to have

denied it on the basis of Cantu’s supposed “dilatory tactics.”

Furthermore, the majority’s suggestion that AEDPA’s one-year

limitation period on filing habeas petitions restricts the right

to assistance of counsel to defendants who file a habeas petition

within the one-year period is inconsistent with our recent

decision in Davis v. Johnson , No. 98-20507, 1998 WL 733731 (5th

Cir. Oct. 21, 1998). There, we joined our sister circuits in

holding that “AEDPA’s one-year statute of limitations does not

operate as a jurisdictional bar and can, in appropriate

exceptional circumstances, be equitably tolled.” Id. at *4. By

finding that there is no right to counsel where the one-year

limitation period has lapsed, the majority undermines McFarland

and Davis by eliminating indigent capital defendants’ right to

have counsel assist them in demonstrating the exceptional

equitable circumstances that could require tolling the

limitations period.

In McFarland , the Supreme Court also reaffirmed the district

courts’ jurisdiction to stay executions because “the right to

counsel necessarily includes a right for that counsel

meaningfully to research and present a defendant’s habeas

claims.” McFarland , 512 U.S. at 858, 114 S. Ct. at 2573. The

Court provided an exception to the general rule that an execution

must be stayed to provide time for adequate representation by

counsel where “a dilatory capital defendant inexcusably ignores

this opportunity and flouts the available processes.” Id. at16

858, 114 S. Ct. at 2573. Nonetheless, the majority errs by

finding that the district court could properly apply that

exception to this case without first appointing counsel to

represent Cantu or conducting an evidentiary hearing. First, by

improperly denying Cantu the assistance of counsel, the district

court denied him the opportunity to present the strongest legal

arguments that he had neither been dilatory nor flouted the

available habeas procedures. Without the benefit of having such

arguments before it, the district court was unable to assess

properly whether Cantu’s failure to file an earlier habeas

petition was inexcusable or not. Second, without holding an

evidentiary hearing, the district court could not properly find

that Cantu either had been dilatory or had flouted the available

habeas procedures. Of the three attorneys that represented Cantu

in his state post-conviction proceedings, two were dismissed

solely upon motion by the attorney. The third, Ingalsbe, was

dismissed upon Cantu’s request, but the record suggests that

Ingalsbe failed to make any substantial steps toward filing any

habeas relief on behalf of Cantu. Although there is evidence

that Cantu did agree to represent himself pro se instead of

continuing to be represented by Ingalsbe or another attorney from

Abilene, several motions filed by Cantu after Ingalsbe was

dismissed indicated that Cantu still desired to be represented by

counsel. Less than a year lapsed from the filing of the last of

these motions in state court until Cantu filed his motion in

federal court for the appointment of counsel and a stay of his17

execution. Without an independent inquiry into the facts

underlying these events, it was an abuse of discretion for the

district court to have presumed that Cantu was being inexcusably

dilatory and was flouting the habeas procedures instead of

reasonably seeking representation and assistance in filing for

habeas relief.

The Supreme Court has noted that “[d]ismissal of a first

federal 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 v. Thomas , 517 U.S. 314, 324, 116 S. Ct. 1293,

1299 (1996). For that reason, it is improper for this court to

deny Cantu’s single chance at federal collateral review of his

state death penalty conviction without ensuring that he had a

sufficient opportunity to be assisted by counsel in seeking that

review. Refusing him such assistance undermines his statutory

right under 21 U.S.C. § 848(q)(4)(B), ignores prior precedent of

the Supreme Court, undermines a prior decision of this Court, and

ultimately denies Cantu due process under the law. I would grant

Cantu the stay of execution and remand this case to the district

court for him to be appointed counsel solely for the purpose of

defending against the state’s claim that his habeas corpus

petition would be time barred. Only by allowing Cantu to have

counsel on the issue of limitations can it be assured that his

right to have counsel assist him in this, his first federal18

habeas corpus challenge to a death penalty conviction, will not

be infringed.