1

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

QUINTIN PHILLIPPE JONES, §

Petitioner, §

VS. § CIVIL ACTION NO. 4:05-CV-638-Y

 § (death-penalty case)

NATHANIEL QUARTERMAN, Director,§

Texas Department of Criminal §

Justice, Correctional §

Institutions Division, § 

Respondent. §

MEMORANDUM OPINION AND ORDER 

DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Quintin Phillippe Jones sentenced to death for capital

murder, petitions the Court for a writ of habeas corpus pursuant to

28 U.S.C. § 2254, contending that his conviction and sentence are

unconstitutional in several respects. Respondent Nathaniel Quarterman

(“the State”) filed a brief in response, as well as a motion to

dismiss the petition as time-barred under 28 U.S.C. § 2244(d). Jones

filed reply briefs to both Respondent’s answer and the motion to

dismiss. The Court will dismiss Jones’s petition for a writ of habeas

corpus.

I

History of the Case

A jury convicted Jones of the capital murder of Berthena Bryant,

and his punishment was assessed at death by lethal injection. See

State v. Jones, Cause No. 0744493D (Criminal District Court Number
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1 of Tarrant County, Texas, Feb. 26, 2001). The cinviction and the

sentence were appealed to the Texas Court of Criminal Appeals, and

that Court affirmed both in a published opinion. See Jones v. State,

119 S.W.3d 766 (Tex. Crim. App. 2003). A petition for writ of

certiorari was denied by the United States Supreme Court on June 14,

2004. See 542 U.S. 905 (2004).

Jones filed a state application for writ of habeas corpus on

November 10, 2004. On July 6, 2005, the state habeas court issued

an order adopting the State’s findings of fact and conclusions of

law recommending that relief be denied based on the pleadings, the

exhibits filed by the parties, and the court record. (Second

Supplemental State Habeas Transcript, p. 48.) The Texas Court of

Criminal Appeals denied relief in an unpublished written order

adopting the trial court’s findings of fact and conclusions of law.

See Ex parte Jones, No. 57,299-01 (Tex. Crim. App. Sept. 14, 2005).

Jones filed his federal petition for writ of habeas corpus on

September 14, 2006. The State filed both an answer and a motion to

dismiss on November 17 furnished the state-court records. After

receiving no reply brief from Jones, this Court dismissed Jones’s

petition in an opinion dated September 21, 2007. The judgment

dismissing the petition was issued that same date. No appeal was

made from this judgment.

On February 27, 2008, this Court received a letter from Jones

in which he stated that he had only recently been made aware that
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his petition had been dismissed in September of 2007 and that he still

wanted to appeal his conviction and sentence. As a result of that

correspondence, this Court appointed new counsel for Jones on March

21, 2008, and, on September 10, granted the motion for relief from

this Court’s judgment of dismissal that was filed by Jones’s new

counsel. On February 5, 2009, Jones filed reply briefs to both the

State’s motion to dismiss and the State’s original answer.

Briefly recounted, the evidence presented by the State at the

guilt phase of the trial established that Jones beat to death his

great-aunt after she refused to loan him money. At the punishment

phase of the trial, the State also presented evidence of Jones’s

involvement in two extraneous murders. See Jones v. State, 119 S.W.3d

at 770-72.

II

Procedural Bar

The State asserts that Jones’s habeas petition should be

dismissed because it is time-barred under applicable federal law.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“the

AEDPA”), a person in custody under a state judgment has one year to

file his federal habeas petition. See 28 U.S.C. § 2244(d)(1). In

Jones’s case, this one-year statute of limitations began to run when

his state judgment became final. See 28 U.S.C. § 2244(d)(1)(A). This

occurred on June 14, 2004, when the Supreme Court denied certiorari

on direct appeal. However, under § 2244(d)(2), the running of
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 In his reply to the State’s motion to dismiss, Jones contends that

there is some ambiguity regarding the date on which the state application

was filed. State habeas counsel, who was also Jones’s original federal

habeas counsel, filed the state application on September 27, 2004, which

was after the deadline under state law. However, on November 10, 2004,

the Texas Court of Criminal Appeals by way of a written order accepted

the application as timely filed. Jones contends that it is unclear from

that court’s order whether the application was deemed filed as of that

date or the original filing date. Jones does acknowledge, however, that

the difference between these two dates does not alter the fact that his

federal habeas petition was filed late. Accordingly, it is unnecessary

for this Court to make a determination on this issue, and this Court will

assume, as the State does, that the state application was properly filed

under federal law as of the date (11-10-04) of the order of the Court of

Criminal Appeals.

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limitations is tolled during the time that a properly filed

application for state post-conviction or other collateral review is

pending.

The Fifth Circuit has defined a “properly filed” application

as one that conforms with a state’s procedural filing requirements.

See Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir. 1999). From

this definition, it is clear that, in order for an application to

be considered “properly filed,” it must, in fact, be filed.

Accordingly, the statute of limitations did not begin to be tolled

under the provisions of § 2244(d)(2) until November 10, 2004, when

Jones’s state habeas application was filed with the trial court. 1

The statute of limitations was then tolled until September 14, 2005,

when the state habeas application was denied by the Texas Court of

Criminal Appeals. Because the running of the one-year limitations

period is tolled for 309 days for the time between the filing of the

state habeas application and its denial, Jones’s deadline for filing
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his federal habeas petition was extended from June 14, 2005, one year

after the Supreme Court denied certiorari on direct appeal, 309 days,

i.e., until April 18, 2006. Because Jones’s initial federal petition

was not filed until September 14, 2006, it was not filed within the

one-year period allowed by the AEDPA limitations provision. 

Nevertheless, the AEDPA’s one-year limitation is not a

jurisdictional bar and can, in exceptional circumstances, be equitably

tolled. See Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998).

And Jones, not disputing that his federal petition was filed late,

contends that he is entitled to equitable tolling. Courts, “guided

by precedent, must examine each case on its facts to determine whether

it presents sufficiently ‘rare and exceptional circumstances’ to

justify equitable tolling.” Fisher v. Johnson, 174 F.3d 710, 713 (5th

Cir. 1999), quoting Davis, 158 F.3d at 811. Accordingly, it is

appropriate to examine the circumstances of this case to determine

whether equitable tolling is warranted.

Jones filed a motion for appointment of federal habeas counsel

on October 12, 2005, twenty-eight days after the Court of Criminal

Appeals denied relief at the state habeas level. This motion was

granted, and this Court appointed Jack Strickland to represent Jones

in his federal habeas case on November 3--167days before the statute

of limitations expired. On December 27, Jones filed a pro se motion

requesting that different counsel be appointed to represent him.

This Court issued an order requiring a response from counsel to this
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request. After Strickland filed a response on March 7, this Court

issued an order on March 9 denying Jones’s request for new counsel.

As noted earlier, in order to meet the one-year deadline under the

AEDPA, the federal petition had to be filed with this Court thirty

days later, on April 8, but was not filed until September 14.

The Fifth Circuit has held that equitable tolling is appropriate

only in rare and exceptional circumstances. Felder v. Johnson, 204

F.3d 168, 170-71 (5th Cir. 2000). The Fifth Circuit has also held

that a lack of knowledge of the law does not ordinarily justify

equitable tolling. See Fierro v. Cockrell, 294 F.3d 674, 683 (5th

Cir. 2002). Instead, equitable tolling usually is applied where a

plaintiff is actively misled by the defendant about the cause of

action or is prevented in some “extraordinary” way from asserting

his rights. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).

Jones contends that he is entitled to equitable tolling because

Strickland’s representation, viewed in its entirety, was so lacking

as to constitute misconduct warranting equitable tolling. In

particular, Jones argues that Strickland never appropriately

communicated with Jones, failed to appreciate Jones’s mental

limitations, and failed to raise potentially meritorious claims at

either the state or federal level. Jones then argues that these

examples of alleged deficient representation, coupled with the fact

that counsel filed Jones’s state application late, filed Jones’s

federal petition late, failed to file any reply brief, and failed
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to file an appeal of this Court’s dismissal of Jones’s federal

petition, constitute a level a neglect that warrants equitable tolling

by this Court. As support for this argument, Jones relies primarily

on Downs v. McNeil, 520 F.3d 1311, 1322-23 (11th Cir. 2008). In

Downs, the Eleventh Circuit held that a death-row prisoner was

entitled to equitable tolling for some portion of the federal

limitations period after determining that Downs’s state habeas counsel

did not file the state habeas petition until only one day remained

in the one-year federal limitations, overtly deceived Downs by stating

that a state petition had been filed earlier when it had not, and

then filed the federal petition eight days past the deadline, despite

having been made aware by Downs on numerous occasions that the federal

petition would be due the day after the state decided his state

petition. In its opinion, the Eleventh Circuit stated that, while

the final event that rendered Downs’s petition untimely was the fact

that counsel filed it late, that court would view the conduct of

counsel as a whole because the negligence in filing the petition late

could not be isolated from counsel’s “allegedly egregious conduct.”

Id. at 1323. 

In citing Downs, Jones urges this Court to view his original

federal habeas counsel’s behavior as a whole and find it to be

egregious conduct. Contrary to the situation in Downs, however, Jones

has not shown either that prior counsel overtly deceived Jones by

telling him that a petition had been filed when it had not or that
2

 Jones also cites to Texada v. Cain, 2008 WL 400255 (5th Cir.

February 13, 2008), an unpublished case in which the Fifth Circuit

granted a habeas petitioner’s motion for a certificate of appealability

on the issue of equitable tolling and remanded the case to the district

court. In this case, the Fifth Circuit cited Wynn and held that, because

Texada had alleged that his attorney “began to mislead him” before his

state habeas application had been filed or the federal limitations period

had run, under Wynn he was entitled to a COA, although the Fifth Circuit

expressed no opinion on the ultimate outcome of the proceeding. Id., slip

op. at 1.

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counsel was so negligent as to file the state habeas petition with

one day, or some comparable short period of time, remaining in the

federal habeas limitations period. A similar case to Downs that was

decided by the Fifth Circuit is United States v. Wynn, 292 F.3d 226,

230 (5th Cir. 2002). In Wynn the Fifth Circuit, in reversing a

district court’s decision denying equitable tolling, held that a

habeas petitioner might be entitled to equitable tolling where his

attorney deceived him into believing that a timely § 2255 motion had

been filed on his behalf, so long as Wynn reasonably relied on his

attorney’s misrepresentations.2 Such is not the case here. Jones

points out that prior federal habeas counsel sent him a letter in

which he promised to file a federal petition on his behalf, and

counsel then filed a late petition and failed to file a reply brief

or an appeal from this Court’s judgment. However, as Jones appears

to tacitly acknowledge in his reply brief, prior counsel filed the

federal petition late by mistake and did not represent that it had

been filed, when it had not. Moreover, while prior counsel’s failure

to file a reply brief or a notice of appeal is certainly not admirable

conduct, this conduct was not a contributing cause to the lateness
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of the petition, and this Court rectified the situation by appointing

new counsel and preserved Jones’s appellate rights by vacating its

previous judgment.

Jones also cites Butler v. Quarterman, 576 F.Supp.2d 805, 809-10

(S.D. Tex. 2008), a case in which the federal district court granted

equitable tolling in a death-penalty case where it was determined

that state habeas counsel had failed to file a motion for appointment

of counsel in federal court, notwithstanding his state statutory duty

to do so, and the petitioner was mentally ill and therefore impaired

in his ability to find his own counsel or seek appointment of counsel

by the court. Again, however, Butler differs from the facts of the

instant case considerably. In the case at hand, prior counsel

promptly filed a motion for appointment of counsel in federal court

after the state court denied Jones’s state application and then filed

the federal petition one year after the state application had been

denied without taking into account the previous period of time during

which the limitations period was not tolled by any state case. While

this was certainly a serious error and constituted neglect by counsel,

counsel did not violate his state statutory duty to file a motion

for appointment of counsel in federal court.

The Fifth Circuit has also allowed equitable tolling where a

petitioner has relied, to his detriment, on the actions of the

district court that contributed to the petition’s being filed late.

See Prieto v. Quarterman, 456 F.3d 511, 514-15 (5th Cir. 2006)
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(granting equitable tolling where the district court granted the

petitioner’s motion for an extension of time to file the petition

and setting the due date after the deadline under the AEDPA); United

States v. Patterson, 211 F.3d 927, 930-31 (5th Cir. 2000) (granting

equitable tolling where the district court granted a motion to

withdraw a federal habeas petition, thus allowing a second petition

to be time-barred). In the instant case, while Jones did file a

motion to have different counsel appointed, this motion was denied

prior to the end of the one-year limitations period, and federal

counsel was not relieved of his duties as Jones’s attorney while that

motion was pending. Therefore, there is no evidence that Jones’s

counsel relied on anything said or done by this Court in filing a

tardy petition.

The Fifth Circuit has held that in a death-penalty case mere

attorney error or neglect is not an extraordinary circumstance

justifying equitable tolling. Cousin v. Lensing, 310 F.3d 843, 849

(5th Cir. 2002). And the Fifth Circuit has reversed a district court

that granted equitable tolling, holding that counsel’s erroneous

interpretation of the statute of limitations cannot, by itself, excuse

the failure to file a habeas petition within the limitations period.

United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). Moreover,

in Riggs, the Fifth Circuit, after recognizing that a decision to

invoke equitable tolling is reviewed by that court for abuse of

discretion, stated directly that a district court abuses its
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discretion when it makes an error of law such as granting equitable

tolling because of attorney error or neglect. Id.

Furthermore, and most importantly, the Supreme Court recently

addressed this issue in Lawrence v. Florida, 127 S.Ct. 1079 (2007).

In that case, the Supreme Court held that a federal habeas petitioner

under a sentence of death was not entitled to equitable tolling under

the AEDPA due to his counsel’s mistake in miscalculating the

limitations period. Specifically, the Supreme Court stated that

attorney miscalculation is not sufficient to warrant equitable

tolling, particularly as prisoners have no constitutional right to

counsel during federal habeas review. Id. at 1086-87.

This Court recognizes that, because this is a case in which the

death penalty has been assessed, there is a very serious consequence

of a decision by a federal district court to dismiss a federal

petition because it was not filed within the statutory limitations

period. This Court is also aware that, because previous federal

counsel was also the state counsel who filed the state application,

he in particular was on notice that, after the state application was

denied by the Court of Criminal Appeals, less than a full year

remained for the federal petition to be filed. Counsel had 167 days

after being appointed by this Court to file a timely petition, a morethan-sufficient amount of time to do so, especially given his prior

knowledge of the case. Nevertheless, he failed to do so. 
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Troubled as this Court may be by these facts, it would be acting

contrary to controlling precedent on this issue were it to rule that

alleged or actual instances of ineffective assistance of counsel,

without any evidence of deceitful or other similarly egregious conduct

on counsel’s part, constitute rare and extraordinary circumstances

under which equitable tolling is warranted. Indeed, the Fifth Circuit

has directly stated that “[i]neffective assistance of counsel is

irrelevant to the tolling decision” and has held that granting

equitable tolling due to the alleged ineffective assistance of federal

habeas counsel is an abuse of discretion. Riggs, 314 F.3d at 799.

 Accordingly, no extraordinary circumstances have been shown

warranting equitable tolling. Respondent’s motion to dismiss Jones’s

petition for writ of habeas corpus as time-barred under 28 U.S.C.

§ 2244(d) is granted. Jones’s request for an evidentiary hearing

is denied.

SIGNED March 4, 2009.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE