* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-20614

Summary Calendar

 

RICHARD KENT MILLER,

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 Southern District of Texas

USDC No. H-97-CV-3390

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April 20, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Richard Kent Miller (Texas prisoner #637111) has applied for

a certificate of appealability (COA) to appeal the district

court’s dismissal of his 28 U.S.C. § 2254 petition as time-barred

under the one-year limitations period of 28 U.S.C. § 2244(d). 

Miller sets forth several reasons why his § 2254 petition should

be considered timely, most of which center around the Texas Court

of Criminal Appeals’ eight-day delay in sending him notice that 
No. 98-20614 

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his state habeas application had been denied. The gist of

Miller’s contentions is that the eight-day delay should not have

counted towards his limitations period. Miller’s contentions,

liberally construed, amount to an argument that his limitations

period should have been equitably tolled to account for the

eight-day delay.

The limitations period of § 2244(d), including the one-year

grace period, is subject to equitable tolling “in rare and

exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 810-

11 (5th Cir. 1998), petition for cert. filed, (U.S. Feb. 23,

1999)(No. 98-8209); Fields v. Johnson, 159 F.3d 914, 916 (5th

Cir. 1998). The doctrine of equitable tolling preserves a

petitioner’s claims “when strict application of the statute of

limitations would be inequitable.” Davis, 158 F.3d at 810

(internal quotations and citations omitted).

Because Miller’s conviction became final prior to the

AEDPA’s effective date of April 24, 1996, his petition was timely

if it was filed before the one-year grace period expired on April

24, 1997. See Flanagan v. Johnson, 154 F.3d 196, 199-200, 202

(5th Cir. 1998). Miller’s § 2254 petition was not filed until

October 2, 1997. The district court, however, determined that

Miller filed a state habeas application on April 18, 1997. 

Miller’s state habeas application tolled the one-year grace

period six days prior to its expiration. See Fields, 159 F.3d at

916 (one-year grace period is tolled by state postconviction

proceedings pending during that period). The Texas Court of

Criminal Appeals denied Miller’s state habeas application without
No. 98-20614 

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written order on September 22, 1997. Thus, Miller had six days

from that date, or until September 28, 1997, to file a timely

§ 2254 petition. September 28, however, was a Sunday, so Miller

had until September 29, 1997, to file a timely petition. See

Fed. R. Civ. P. 6(a). The record indicates that the Texas Court

of Criminal Appeals did not send out notice of its decision until

September 24, 1997, and that Miller did not receive the court’s

notice until October 2, 1997. The district court determined that

Miller filed his § 2254 petition on October 2, 1997, the same day

that he received notice that his state habeas application had

been denied. Despite his diligence, Miller missed the September

29th deadline by three days.

Given the unique circumstances of this case, Miller has

shown that the strict application of § 2244(d)’s one-year

limitations period would be inequitable and that the doctrine of

equitable tolling should therefore apply to preserve his claims. 

See Davis, 158 F.3d at 810. Because Miller has shown that his

§ 2254 petition should not have been dismissed as time-barred, we

ordinarily would proceed to the merits of Miller’s habeas claims. 

See Sonnier v. Johnson, 161 F.3d 941, 943-44 (5th Cir. 1998). 

However, we lack jurisdiction to do so in the instant case

because the district court did not address the merits of Miller’s

claims as an alternative to its procedural holding. See Sonnier,

161 F.3d at 945-46; Whitehead v. Johnson, 157 F.3d 384, 387-88

(5th Cir. 1998). Moreover, the Respondent, in his motion to

dismiss, reserved the right to plead failure to exhaust as a

defense in the event that the district court declined to dismiss
No. 98-20614 

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Miller’s petition as time-barred. If we were to address the

merits of Miller’s claims, the Respondent’s potential defense of

exhaustion would be bypassed. See Sonnier, 161 F.3d at 945. 

Accordingly, we GRANT a COA on the limitations issue, VACATE the

judgment of the district court, and REMAND the case to the

district court so that the Respondent has an opportunity to

assert failure to exhaust as a potential defense. See id. at

945-46. If Miller’s case remains viable after that point, the

district court is then instructed to consider the merits of

Miller’s habeas claims. See id. at 946.

COA GRANTED; judgment VACATED and case REMANDED.