IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20232

Summary Calendar

ERNEST EUGENE O’VEAL, 

 Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent–Appellee.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:14-CV-1550

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Ernest Eugene O’Veal appeals the district court’s dismissal of his 

application for a writ of habeas corpus as untimely under 28 U.S.C. § 2244(d). 

We AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 19, 2016

Lyle W. Cayce

Clerk

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I. FACTS AND PROCEDURAL HISTORY

In 2012, O’Veal pleaded no contest to charges of committing injury to a 

child and waived his right to appeal. On June 14, 2012, he was sentenced to 

forty-five years of imprisonment. The Fourteenth Court of Appeals of Texas 

dismissed O’Veal’s direct appeal on August 23, 2012, because he had entered a 

plea agreement and had no right to appeal. O’Veal v. Texas, No. 14-12-00567-

CR, 2012 WL 3629196, at *1 (Tex. App.—Houston [14th Dist.] Aug. 23, 2012, 

no pet.). O’Veal did not seek discretionary review. 

In October 2012, O’Veal wrote to the Harris County District Clerk to ask 

about the status of his direct appeal and the identity of his attorney. The clerk 

replied with a form containing the date the appeal was filed and the name of 

his appointed counsel. The clerk’s response did not indicate O’Veal’s appeal 

had already been dismissed. In May 2013, O’Veal contacted the Fourteenth 

Court of Appeals again asking about the status of his direct appeal. In its reply, 

the court enclosed its opinion from nine months earlier dismissing O’Veal’s 

direct appeal. O’Veal then filed a state application for a writ of habeas corpus 

on or about September 3, 2013. The Texas Court of Criminal Appeals (“TCCA”)

denied the application on February 5, 2014.

O’Veal filed the present federal habeas application on April 9, 2014, 

raising claims of ineffective assistance of trial counsel. On November 3, 2014, 

the district court granted Respondent’s motion for summary judgment and 

dismissed the case as barred by the statute of limitations under 28 U.S.C. 

§ 2244(d). Several months later, O’Veal contacted the district court and stated 

that he did not receive notice of the court’s dismissal of his case until late 

March 2015. Thus, the district court granted his motion to reopen the time to 

file an appeal, and O’Veal subsequently filed his notice of appeal. This Court 

granted certificates of appealability with respect to O’Veal’s procedural claims 

on March 3, 2016.

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II. DISCUSSION

Under the Antiterrorism and Effective Death Penalty Act of 1996 

(“AEDPA”), federal habeas applications are subject to a one-year period of 

limitations. 28 U.S.C. § 2244(d). In the instant case, the district court 

calculated the limitations period pursuant to § 2244(d)(1)(A), which provides 

that the limitations period will run 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.” 28 U.S.C. § 2244(d)(1)(A). Notably, “[t]he 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.” 28 U.S.C. § 2244(d)(2). The one-year 

limitations period in § 2244(d)(1)(A) is not jurisdictional and is therefore

subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). 

The district court gave two alternative reasons for holding that O’Veal’s 

case had been filed after the limitations period expired. In its first calculation, 

the district court determined that direct review concluded when O’Veal’s direct 

appeal was dismissed on August 23, 2012, and his conviction became final 

thirty days later upon the expiration of the time for filing a petition for 

discretionary review. After statutorily tolling the one-year limitations period

to account for the pendency of the state habeas proceedings, the district court 

concluded that O’Veal’s federal habeas application became due on February 

24, 2014. Because the district court also held that equitable tolling was not 

appropriate in this case, it found that O’Veal’s federal habeas application, 

which was filed on April 9, 2014, was untimely. In its alternative calculation, 

the district court determined that O’Veal’s conviction became final for purposes 

of AEDPA when he was sentenced on June 14, 2012, after pleading no contest 

and waiving his right to appeal. Accordingly, the limitations period expired one 

year later on June 14, 2013, and both the state and federal habeas applications 

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were filed after the limitations period had run. On appeal, O’Veal contends 

that (1) the district court erred in concluding that equitable tolling was not 

warranted and (2) direct review concluded under § 2244(d)(1)(A) when the 

Fourteenth Court of Appeals dismissed his direct appeal on August 23, 2012.

Equitable tolling is appropriate only in “rare and exceptional 

circumstances.” Mathis v. Thaler, 616 F.3d 461, 475 (5th Cir. 2010) (quoting In 

re Wilson, 442 F.3d 872, 875 (5th Cir. 2006)). To be entitled to equitable tolling, 

a petitioner must show “‘(1) that he has been pursuing his rights diligently, 

and (2) that some extraordinary circumstance stood in his way’ and prevented 

timely filing.” Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 

408, 418 (2005)). The district court concluded that equitable tolling was not 

warranted in this case because O’Veal did not show (1) “that he exercised 

reasonable due diligence throughout the entire course of his state proceedings” 

or (2) “that the delay in receiving notice of the direct appeal’s dismissal was an 

unconstitutional state-created impediment that prevented his timely filing of 

the instant petition.” This Court reviews a district court’s denial of equitable 

tolling for an abuse of discretion. Mathis, 616 F.3d at 474.

“Long delays in receiving notice of state court action may warrant 

equitable tolling.” Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009); 

Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), modified on reh’g, 223 

F.3d 797 (2000). In Hardy, this Court held that a pro se habeas petitioner

“suffered a significant state-created delay when the TCCA failed in its legal 

duty to inform him that his petition had been denied” for eleven months after 

the TCCA’s decision. 577 F.3d at 599. In that case, however, the habeas 

petitioner was proceeding pro se, and he was unable to determine the status of 

his case solely because the TCCA failed to notify him and failed to respond to 

his requests for information. Id. at 599–600.

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In the instant case, the district court concluded that O’Veal’s failure to 

timely file his federal habeas application was due at least in part to his own 

lack of diligence. The Harris County District Clerk responded to O’Veal’s 

October 2012 request for information and provided the name of his attorney. 

The response from the clerk’s office was probably inadequate and perhaps 

misleading given that O’Veal’s appeal had already been dismissed. However, 

at that point, O’Veal could have tried to contact his attorney to inquire about 

the status of his case. O’Veal has not indicated that he made any attempts to 

do so. Thus, the district court did not abuse its discretion in concluding that 

O’Veal did not show he had diligently pursued his rights. See Lewis v. Cockrell, 

33 F. App’x 704 (5th Cir. 2002) (holding that equitable tolling was not 

appropriate because the petitioner could have contacted his attorney to inquire 

about the status of his appeal).

O’Veal also notes that his attorney was required to promptly notify him 

of the state court’s decision on his appeal under Texas Rule of Appellate 

Procedure 48.4. He contends that his appellate attorney failed to notify him of 

the decision and abandoned him during the appellate proceeding. An attorney’s 

“failure to satisfy professional standards of care” may constitute an 

extraordinary circumstance that stands in a petitioner’s way and prevents him 

from timely filing. Holland, 560 U.S. at 649–52. However, O’Veal has not 

pointed to any authority suggesting that an attorney’s failure to notify a 

defendant of the status of his case rises to the level of an extraordinary 

circumstance that prevents the defendant from timely filing a federal habeas 

petition.

Accordingly, we hold that the district court did not abuse its discretion 

in denying equitable tolling in this case. Because the district court did not 

abuse its discretion in this regard, we need not reach the issue of whether 

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direct review continued for purposes of § 2244(d)(1)(A) until the Fourteenth

Court of Appeals dismissed O’Veal’s direct appeal on August 23, 2012.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s dismissal of 

O’Veal’s habeas application as barred by the statute of limitations.

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