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 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 (“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). The Court dismisses Jones’s petition for a writ of habeas

corpus.

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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

1 of Tarrant County, Tex. Feb. 26, 2001). The case was appealed to
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the Texas Court of Criminal Appeals, and that Court affirmed the

conviction 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Criminal Appeals denied relief in an unpublished written order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, 2006, and furnished the state-court records.

Jones filed no response.

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.
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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

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.

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

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

his federal habeas petition is extended from June 14, 2005, one year

after the Supreme Court denied certiorari on direct appeal, 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 sections. 

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).

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 look to the circumstances of this

case in order to determine whether equitable tolling is warranted.

Here, 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, 2005, 167 days before

the statute of limitations expired. On December 27, 2005, Jones filed

a pro se motion requesting that different counsel be appointed to
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represent him. This Court issued an order requiring a response from

counsel to this request. After Strickland filed a response on March

7, 2006, this Court issued an order on March 9, 2006, denying Jones’s

request for new counsel. As noted earlier, in order to meet the oneyear deadline under the AEDPA, the federal petition had to be filed

with this Court thirty days later, on April 8, 2006, but was not filed

until September 14, 2006.

The Fifth Circuit has held that equitable tolling is appropriate

only in rare and exceptional circumstances. See 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).

And, 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)

(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
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equitable tolling where the district court granted a motion to

withdraw a federal habeas petition, thus allowing a second petition

to be time-barred). But the Fifth Circuit has held that in a deathpenalty case mere attorney error or neglect is not an extraordinary

circumstance justifying equitable tolling. See Cousin v. Lensing,

310 F.3d 843, 849 (5th Cir. 2002). Moreover, 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. See Lawrence v. Florida, 127

S.Ct. 1079, 1086-87 (2007).

In the instant case, because no response was filed by Jones to

the State’s motion to dismiss, no reason has been given to this Court

for the delay in filing the federal petition. It appears, however,

that federal habeas counsel filed the petition one year after the

state court denied the state application for habeas corpus without

taking account of the period between when the direct-appeal process

was concluded and the state habeas application was filed-–a time when

the one-year limitations period was running. As the record reflects

that federal counsel was also the state counsel who filed the state
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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 petition,

a more-than-sufficient amount of time to do so, especially given his

prior knowledge of the case. 

Moreover, while Jones filed 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. Accordingly, no

extraordinary circumstances have been shown to warrant 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.

SIGNED September 21, 2007.