REVISED JUNE 19, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 01-50400

_____________________

CESAR ROBERTO FIERRO,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

__________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________ June 13, 2002

Before KING, Chief Judge, and JOLLY and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In 1980, Cesar Roberto Fierro was convicted and sentenced to

death for the murder of Nicolas Castanon. The conviction was

based, in part, on Fierro’s written confession. Before trial,

Fierro unsucce ssfully sought to suppress the confession on the

ground that it was obtained by holding his mother in a Mexican jail

until he admitted to the murder. After a direct appeal and after

two petitions for post -conviction relief, Fierro filed a third

post-conviction pe tition in Texas state court based on evidence

that Detective Al Medrano, the El Paso police officer who obtained

the confession from Fierro, lied in his testimony during the1 F ierro has never argued that the state knowingly presented

perj ured testimony at trial or deliberately withheld from Fierro

evidence of Medrano’s perjury.

2 Because we find that the district court’s judgment should be

affirmed on this ground, we do not reach the district court’s

alternative finding that the factual predicate for Fierro’s claim

-- that is, the evidence of Medrano’s perjury at the suppression

hearing

-- could have been discovered by Fierro’s trial counsel

through the exercise of due diligence.

2 suppression hearing. The state habeas court found that Medrano had

indeed presented materially false testimony, but the Texas Court of

Criminal Appeals denied Fierro’s petition bec ause it found the

false testimony harmless. 1 After receiving authorization from this

Court, Fierro then filed a successive petition for a writ of habeas

corpus in the Western District of Texas. The district court

dismissed the petition because it was time-barred and,

alternatively, because the factual predicate for the petition could

have been discovered earlier through the exercise of due diligence.

The question we address her e is whether the district court

erred in holding that Fierro's successive habeas petition is barred

by the one-year statute of limitations under the Anti-Terrorism and

Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1). We

conclude that the petition was filed outside the applicable statute

of limitations. We further conclude that Fierro has not

demonstrated that equitable tolling of the limitation s period is

warranted in this case. Accordingly, we affirm the district

court’s dismissal of Fierro’s petition. 23 To prove that the Juarez police were actua lly holding

Fierro’s mother, Medrano allegedly showed Fierro letters that he

3 I

Although the facts of this case have been well documented

during the course of the extensive proceedings in state and federal

court, some background is required to place the issue before us in

context. In 1979, the State of Texas charged petitioner Cesar

Roberto Fierro with the murder of Nicolas Castanon, an El Paso

taxicab driver, based on the statement of an alleged eyewit ness.

The eyewitness, Geraldo Olague, told the police that he and Fierro

were riding in Castanon’s cab when Fierro suddenly shot Castanon in

the back of the head. According to Olague, Fierro removed the body

from the cab and took Cas tanon’s watch and wallet. Fierro and

Olague then drove the cab across the Mexican border and abandoned

it in Juarez.

Relying on Olague’s statement, El Paso police detective Al

Medrano retrieved Fierro from a nearby jail on August 1, 1979 and

questioned him. While Fierro was in police custody, he signed a

statement in which he confessed to Castanon’s murder. Before his

trial for capital murder, however, Fierro moved to suppress the

statement, arguing that he had confessed involuntarily. According

to Fierro’s testimony at the suppression hearing, Medrano told

Fierro during the interrogation that Mexican police had raided his

mother’s residence in Juarez that morning and had taken her and

Fierro’s step-father into custody. 3 Fierro also testified thatand his brother had sent to her. Fierro’s m other similarly

testified that the Juarez Police raided her apartment early in the

morning of August 1, 1979 and took two letters written by her sons.

4 Fierro presented evidence that the Juarez police had a wellknown reputation for torturing prisoners.

5 At the suppression hearing, Medrano testified that it was

Fierro who raised the possibility that his mother was being held by

the Mexican authorities. Medrano also testified that he did not

possess any letters recovered from Fierro’s mother.

4 Medrano advised him that the police would detain his mother and

step-father in the Juarez jail until he confessed to Castanon’s

murder. Fierro thus asserted that he confessed to the murder only

to secure the release of his mother and step-father. 4

To refute Fierro’s testimony, Medrano testified at the

suppression hearing that he was unaware of the arrest of Fierro’s

m other in Juarez when he interrogated Fierro. 5 Thus, Medrano

asserted that he could not have told Fierro about the raid on his

mother’s house or about her detention in the Juarez jail. Medrano

conceded that he met Juarez Police Commandante Jorge Palacios for

breakfast on the morning of the raid, but Medrano maintained that

Palacios told him only where Fierro could be found.

Accepting Medrano’s account, the trial court rejected Fierro’s

argument that his confession was involuntary and admitted the

confession into evidence at trial. Based on Fierro’s confession

and Olague’s eyewitness testimony, a jury convicted Fierro of

Castanon’s murder and sentenced him to death in February 1980. On

direct appeal, the Texas Court of Criminal Appe als affirmed the6 In 1990, Fierro also filed a successive petitio n for postconviction relief challenging the constitution ality of the Texas

death penalty statute. The state habeas court, the Texas Court of

Criminal Appeals, the district court, and this Court all rejected

this claim as well.

7 Medrano was deceased at the time of the 1994 state hab e as

proceedings.

5 trial court’s ruling on the voluntariness of Fierro’s confession.

See Texas v. Fierro

, 706 S.W.2d 310, 316 (Tex.Cr.App. 1986).

Represented by his appellate counsel, Fierro raised the same claim

c oncerning the voluntariness of his confession in a petition for

post-conviction relief in state court and in his first federal

habeas petition. Relying primarily on the trial court’s

credibility determinations during the suppression hearing, the

s tate habeas court, the Texas Court of Criminal Appeals, the

federal habeas court, and this Court rejected Fierro’s claim. S ee

Fierro v. Lynaugh

, 879 F.2d 1276 (5th Cir. 1989)

, cert. denied sub

nom Fierro v. Collins , 494 U.S. 1060 (1990).

In 1994, Fierro retained new counsel and filed a petition for

post-conviction relief in state court based on the discovery of new

evidence relating to the voluntariness of his 1979 confession. 6

During the evidentiary hearing in the state habeas court, Fierro

presented a police report

-- found in the El Paso police

investigative file

-- that was completed by Detective Medrano on

August 1, 1979. 7 The report documents a telephone conversation

between Medrano and Palacios at 5:00 a.m. that morning in which

Palacios “sta ted that they had raided the house [of Fierro’s8 Fierro also presented the testimony o f Palacios, which was

obtained through a letters rogatory proceeding conducted by a judge

in M exico in 1994. Contradicting Medrano’s suppression hearing

testimony, Palacios testified that he informed Medrano of Fierro’s

location during their 5:00 a.m. telephone conversation (rather than

at their later breakfast meeting) and that he never spoke to Fierro

during the investigation into Castanon’s murder.

6 parents] this morning . . . and had in custody the mother of the

suspect, CESAR FIERRO, her name being SOCORRO REYNA, and her common

law husband, ALFREDO MURGA.” According to the report, Palacios

also told Medrano that Fierro was then in custody in an El Paso

jail. 8

Based on this evidence, the state habeas trial court found

that Medrano’s testimony at the 1979 suppression hearing “regarding

the nature and extent of cooperation between the El Paso police and

the Juarez police in this case” was fa lse and that Medrano “did

have information that the Defendant’s mother and step-fat her had

been taken into custody by the Juarez police with the intent of

holding them in order to coerce a confession from the Defendant.”

The court concluded “[t]hat there is a strong lik[e]lihood that the

D efendant’s confession was coerced by the actions of the Juarez

police and by the knowledge and acq[u]iescen ce of those actions

b[y] Det. Medrano.” The court therefore recommended a new trial.

The Texas Court of Criminal Appeals adopted the state habeas

court’s factual finding s and agreed that Fierro’s “due process

rights were violated by Medrano's perjured testimon y.” E x parte

Fierro

, 934 S.W.2d 370, 371-7 2 (Tex.Cr.App. 1996), c ert. denied

,7

521 U.S. 1122 (1997). A majority of the court nevertheless denied

Fierro relief because, “given Olague's ey e-witness testimony and

the lack of any rea l reason to doubt his credibility, it is more

probable than not that the outcome of applicant's trial would have

been the same absent the confession.” Id. at 376.

After an unsuccessful petition for certiorari in the Supreme

Court, Fierro filed a motion in thi s Court on October 20, 1997

seeking a stay of his execution and authorization to file a

successive habeas petition. The panel granted the motion on

November 11, but F ierro did not file his habeas petition in the

district court until February 27, 1998. The district court

accepted the state habeas court’s findings of fact concerning

Medrano’s false testimony at the suppression hearing but ultimately

dismissed Fierro’s petition as barred by the statute of limitations

governing successive petitions under the AEDPA. Alternatively, the

district court dismissed the petition because the factual predicate

for the perjury claim could have been discovered through the

exercise of due diligence at trial. On May 3, 2001, the district

court granted Fierro a Certificate of Appealability on both of

these issues.

II

The sole issue that we address in this appeal is whether

Fierro’s successive habeas petition is barred by the one-year

statute of limitations established under the AEDPA. The state8

contends that the statute of limitations expired no later than

November 28, 1997 and that Fierro’s February 27, 1998 petition is

therefore untimely. Fierro maintains that his petition was timely

for two reasons. First, Fierro argues that he satisfied the AEDPA

statute of limitations by filing a motion for authorization in this

Court

-- which included the “essential elements” of his habeas

application -- within one year of the final judgment on his state

petition. Second, Fierro argues that the limitations period should

be equitably tolled in this case because “it would be an

‘indefe nsible sort of entrapment’” to bar a petition filed in

accordance with a scheduling order issued by the district court at

the state’s request.

Agreeing with the state, the district court dismissed Fierro’s

petition as barred by the statute of limitations because it found

“absolutely nothing that would excuse the un timely filing.” We

review de novo the district court’s dismissal of a habeas petition

on procedural grounds. See Emerson v. Johnson , 243 F.3d 931, 932

(5th Cir. 2001)

. We review the district court’s denial of equitable

tolling for an abuse of discretion

. S ee Molo v. Johnson

, 207 F.3d

773, 775 (5th Cir. 2000).

A

The initial question here is whether Fierro has actually met

the time r equirements of the applicable statute of limitations.

Under the AEDPA, state prisoners have one year in whi ch to file9

petitions for a writ of habeas corpus in federal court. S ee 28

U.S.C. § 2244(d)(1). Where a petitioner’s state court conviction

became fina l before the enactment of the AEDPA, the one-year

statute of l imitations begins to run on the date of the AEDPA’s

enactment

-- that is, April 24, 1996. S ee United States v. Flores

,

135 F.3d 1000, 1005 (5th Cir. 1998). In the present case, Fierro’s

murder conviction became final in 1986, well before the AEDPA was

enacted. Thus, the AEDPA statute of limitations began to run with

respect to Fierro’s instant petition on April 24, 1996. Because

the statute is tolled during the pendency of state court petitions

for post-conviction relief, however, the statute did not begin to

run on Fierro’s petition until November 28, 1997, the date on which

the judgment on his s tate habeas petition became final. S ee 28

U.S.C. § 2244(d)(2). It follows that the one-year limitations

period expired on November 28, 1997 and that Fierro’s February 1998

petition was filed outside this period.

Fierro nevertheless contends that his petition is not barred.

He argues that his October 20, 1997 motio n in this Court for

autho rization to file a successive habeas petition effectively

initiated the federal habeas proceeding and thus satisfied the oneyear statute of limitations -- notwithstanding that a habeas

petition must be filed in the district court, not in the court of

appeals. Specifically, Fierro argues that his motion for

authorization should be deemed “an application for a writ of habeas9 We note t hat, following I n re Epps

, 127 F.3d 364, 365 (5th

Cir. 1997), petitioners seeking to file a successive petition must

attach the proposed petition to the motion for authorization.

10 corpus” that was filed within one year of the state court judgment

because (1) t he motion is “indistinguishable” from (and is an

“indivisible part of”) his habeas petition and (2) the motion gave

the state notice of the grounds for the petition. In this regard,

Fierro observes that the motion included all of the elements of a

habeas petition required by R ule 2(c) of the Rules Governing

Section 2254 Cases, including a juri sdictional statement, a

statement of facts, a statement of his claims, and legal authority

supporting those claims. Because Fierro did not raise this

argument in the district court, however, we review only for plain

error. See Lackey v. Johnson , 116 F.3d 149, 152 (5th Cir. 1997)

.

Although this issue is one of first impression, both the

language of the AEDPA and analogous caselaw compel the conclusion

that a motion for authorization to file a successive petition is

not itself an “application for a writ of habeas corpus.” 9 As a

consequence, the filing of such a motion does not satisfy the oneyear statute of limitations under the AEDPA. As an initial matter,

the provision governing successive habeas petitions implicitly

recognizes a distinction between a motion for authorization and an

application for a writ of habeas corpus. Specifically, 28 U.S.C.

§ 2244( b)(3)(A) establishes that: “Before a second or successive

application permitted by this section is filed in the district10 As a general rule, “[a]n application is ‘filed’ . . . when

it is delivered to, and accepted by, the appropriate court officer

for placement into the official record.” A rtuz v. Bennett

, 531

U.S. 4, 8 (2000). Thus, under Rule 22, an application for a writ

of habeas corpus is “filed” when it is “delivered to, and accepted

by,” the district court.

11 court, the applicant shall move in the appropriate court of appeals

for an order authorizing the district court to consider the

application.” See also 28 U.S.C. § 2244(b)(3)(C) (providing that

a circuit court “may authorize the filing of a second or successive

application” if the petitioner makes a showing that the relevant

criteria are met). The statute thus clearly contemplates that the

actual application will be filed in the district court rather than

in the circuit court. Indeed, the rules of appellate procedure

explicitly require the petitioner to f ile “an application for a

writ of habeas corpus” in the district court. S ee Fed. R. App. P.

22(a). 10

Cases addressing whether the AEDPA governs a particular

petition have similarly concluded that a habeas case is “pending”

only if an actual habeas petition has been filed in the district

court. For example, we have held that “the relevant date for

determining the applicability of the AEDPA to habeas corpus

petitions is the date that the actual habeas corpus petition is

filed.” Williams v. Cain

, 125 F.3d 269, 274 (5 th Cir. 1997)

(emphasis added); see also Nobles v. Johnson

, 127 F.3d 409, 413-14

(1997) (same). In reaching this conclusion, we rejected the11 The Supreme Court has held that a request for a Certificate

of Appealability under 28 U.S.C. § 2253 is a “case” under Article

III because “[i]t is a proceeding seeking relief for an immediate

redressable injury.” H ohn v. United States

, 524 U.S. 236, 241, 246

(1998). H ohn does not, however, address whether a preliminary

filing

-- like a request for a COA or a motion for authorization

--

may be deemed an “application for a writ of habeas corpu s.” S ee

Moore v. Gibson

, 195 F.3d 1152, 1163 (10th Cir. 1999) (noting that

Hohn does not imply “that the petitioner's habeas corpus case has

been initiated by the filing of such a preliminary motion [for

appointment of counsel]”). As a consequence, Hohn does not affect

our conclusion that Fierro’s motion for authorization did not

satisfy the AEDPA statute of limitations. Similarly, in Liriano v.

United States

, 95 F.3d 119, 122-23 (2d Cir. 1996)

, the Second

Circuit suggested in dictum that a petitioner could submit an

“application” to the circuit court “accompanied by” the motion for

authorization that “would be considered in determining the

applicant's compliance with the applicable one-year limitations

period.” Here again, the court did not address whether a motion

for authorization alone could satisfy the statute of limitations.

12 contention that a motion to stay execution or a motion to appoint

counsel initiates a habeas corpus proceed ing. S ee Williams

, 125

F.3d at 274. Although a motion for authorization to file a

successive habeas petition may include a discussion of the merits

of the underlying claims and other elements of an actual petition,

the motion “is not itself a petition, because it does not call for

(or even permit) a decision on the merit s.” 1 1 H olman v. Gilmore

,

126 F.3d 876, 879-80 (7th Cir. 1997) (discussing the status of a

motion for appointment of counsel). Like a motion for appointment

of counsel, a motion for authorization “is a prelude to a

collateral attack . . . but is not itself a collateral attack.”

Id. at 879.

Because Fierro’s motion for authorization is merely a

preliminary motion that does not itse lf initiate habeas12 Quite apart from the question whether the motion for

authorization constitutes a habeas petition is the question

whether, and under what circumstances, the filing of such a motion

in a court of appeals may equitably toll the statute d uring the

pendency of the motion. Although the Supreme Court has made it

clear that the AEDPA tolling provision does not authorize tolling

during the pendency of f ederal proceedings, neither the Supreme

Court nor this Court has addressed the application of equitable

toll ing in this context. S ee Duncan v. Walker

, 121 S.Ct. 2120,

2125 (2001). We need not reach this issue, however, because

Fierro’s February 1998 petition was untimely even if we do not

count the 22-day pendency of his motion for authorization in this

Court.

13 proceedings, it cannot satisfy the statute of limitations

established under the AED PA. We therefore conclude that the

district court did not err, much less plainly err, by holding that

Fierro filed his February 1998 habeas petition outside the one-year

limitations period. 12

B

Fierro next argues that, even assuming his petition was filed

outside the statutorily-defined limitations period, the statute of

limitations should be equitably tolled because both the parties and

the district court initially operated under the assumption that the

statute did not bar his petition. Relatedly, Fierro also argues

that due process requires the enforcement of the district court’s

scheduling order, which set the deadline for filing Fierro’s

petition outside the limitations period, because he relied on that

order in filing his petition. The state responds that its request

for the scheduling order was not based on the assumption, implicit

or explicit, that Fierro’s petition was timely. Because Fierro’s14

failure to file his petition within the one-year limitations period

was the result of his own legal error, we conclude that Fierro has

not demonst rated that the circumstances of this case are

sufficiently exceptional to warrant equitable tolling.

W e have recognized that the one-year limitations period for

filing habeas petitions estab lished in § 2244(d)(1) is not a

jurisdictional bar and is therefore subject to equitable tolling.

See Davis v. Johnson

, 158 F.3d 806, 811 (5th Cir. 1998). Although

equitable tolli ng is a “discretionary doctrine that turns on the

facts and circumstances of a particular case,” we ordinarily “draw

on general principl es to guide when equitable tolling is

appropriate.” F isher v. Johnson

, 174 F.3d 710, 713 (5th Cir.

1999). As a general rule, equitable tolling operates only “in rare

and exceptional circumstances” where it is necessary to “preserve[]

a plaintiff's claims when strict application of the statute of

limitations would be inequitable. ” D avis

, 158 F.3d at 810-11

(citation and internal quotation marks omitted). Equitable tolling

thus applies “‘principally where the plaintiff is actively misled

by the defendant about the cause of action or is prevented in some

extraordinary way from asserting his rights.’” C oleman v. Johnson

,

184 F.3d 398, 402 (5th Cir.1999) (citation omitted). As a

consequence, neither “excusable neglect” nor ignorance of the law

is sufficient to justify equitable tolling. Id.13 The Patterson Court also noted that, in a non-AEDPA context,

the Supreme Court “indicated that if a ‘court has led the plaintiff

to believe that she had done everything required of her,’ the

doctrine of equitable tolling may be applied.” P atterson

, 211 F.3d

at 931 (quoting Baldwin County Welcome Ctr. v. Brown

, 466 U.S. 147

(1984)).

15 In United States v. Patterson

, 211 F.3d 927, 931 (5th Cir.

2000), we applied equitable tolling because a district court order

unintentionally mis led the prisoner. In P atterson

, the district

court granted a pro se prisoner’s request to dismiss his petition

without prejudice (over the government’s objection) so that the

prisoner could retain a lawyer. S e e id. Observing that the

prisoner and the district court “apparently were under the mistaken

impression” that a later petition would not be time barred, we held

that equitable tolling applied because the prisoner relied to his

detriment on the district court’s decision to dismiss for the

express purpose of allowing later refiling. 1 3 I d. at 931-32. In

contrast, we held in Melancon v. Kaylo

, 259 F.3d 401, 408 (5th Cir.

2001), that equitable tolli ng was not appropriate where a state

court erroneously entered the return date for a pro se prisoner’s

supervisory writ to the Louisiana Court of Appeals because the

prisoner then “waited more than four months to file his federal

habeas petition.” Id.

Applying these pr inciples to the present case, we conclude

that equitable tolling is not appropriate because Fierro’s failure

to file his habeas petition within the applicable limitations14 In October 1999 (after the parties briefed the question but

before the district court dismissed Fierro’s petition), we decided

as an issue of first impression that the AEDPA limitations period

is not equitably tolled during the pendency of a petition for

certiorari in the Supreme Court. S ee Ott v. Johnson

, 192 F.3d 510,

513 (5th Cir. 1999).

16 period is attributable solely to his mistaken assumption that the

statute of limitations did not apply to his petition. The record

reflects no other practical or legal reason that would have

prevented Fierro from filing his federal petition during the

applicable limitations period. As noted above, Fierro appealed the

denial of his state habeas petition to the United States Supreme

Court. Rather than filing his federal habeas petition concurrently

with his Supreme Court appeal, however, Fierro elected to wait

until the Supreme Court acted on his petition for certiorari on

June 29, 1997. Fierro argues that he believed the one-year statute

of limitations established in § 2244(d) did not apply to successive

habeas petitions under § 2244(b) or, alternatively, that filing a

petition for certiorari tolled the statute of limitations. 14 He

therefore did not file his motion for authorization until October

1997 and did not file his habeas petition until February 1998.

As Fierro concedes, neither the state nor the district court

made affirmative representations regarding the running of the AEDPA

limitations period. Fierro’s argument is, in ef fect, that he is

entitled to equitable tolling because his untimely filing was based

on an interpretation of the AEDPA statute of limitations that was

reasonable at the time, although it later proved to be incorrect.15 Cf. Ott

, 192 F.3d at 514 (denying equitable tolling where

prisoner did not file state habeas claim until one day before the

expiration of the one-year limitations period and therefore had

only one day to file his petition after the state court judgment

became fin al). Fierro’s failure to file a habeas petition within

the applicable limitations period is particularly difficult to

excuse in view of his assertion that his motion for authorization

contained all of the essential elements of a habeas petition.

17 But we have made it clear that a lack of knowledge of the law,

however understandable it may be, does not ordinarily justify

equitable tolling. See Fisher v. Johnson , 174 F.3d 710, 714 (5th

Cir. 1999) (“[I]gnorance of the law, even for an incarcerated pro

se petitioner, generally does not excuse prompt filing.”); see also

Felder v. Johnson , 204, F.3d 168, 172 (2000) (same).

This policy has particular force in the present case because

Fierro did not file his motion for authorization until nearly four

months after the Supreme Court denied his petition for certiorari.

He then had more than two weeks after we authorized his successive

petition in which to transform his motion for authorization into a

proper habeas petition. 15 Although the appli cation and

interpretation of the AEDPA statute of limitations was somewhat

unsettled during this period, we think that such uncertainty should

have militated against taking an unnecessary ri sk by waiting to

file a motion for authorization and habeas petition. Given the

n ature of the interests at stake, it seems to us that it was

incumbe nt upon counsel to err on the side of caution and file

Fierro’s petition within the most conservative of possible16 In response to the state’s request for a scheduling order,

Fierro asked the district court for permission to file his petition

in February 1998. The district court granted this request without

comment. The state was not required to (and did not) raise its

statute of limitations defense until it filed an answer to Fierro’s

petition.

18 deadlines under the statute. In short, counsel’s erroneous

interpretation of the statute of limitations provision cannot, by

itself, excuse the failure to file Fierro’s habeas petition in the

district court within the one-year limitations period.

Fierro argues that equitable tolling is nevertheless warranted

here because the district court’s scheduling order, issued at the

state’s request, led him to believe that the AEDPA statute of

limitations was not at issue in his case. 16 Because the parties and

the court apparently assumed that his petition was not time-barred,

Fierro argues that due process requires equitable tolling of the

statute of limitations in accordance with the February 1998 filing

deadline established by the scheduling order.

Even assuming that the state labored under the same mistaken

assumption that the statute of limitations was not an issue with

respect to Fierro’s petition, however, this argument fails. As

noted earlier, the applicable limitations period passed on November

28, 1997 -- three weeks before the state requested the scheduling

order. Thus, the state’s request and the district court’s order

could not have contributed to Fierro’s failure to comply with the

one-yea r statute of limitations. Although some legal questions

concerning the operation of the statute of limitat ions remained17 Our precedent forecloses Fierro’s related argument that the

AEDPA statute of limitations is unconstitutional as applied to his

case because it results in a “fundamental miscarriage of justice.”

See Graham v. Johnson

, 168 F.3d 762, 787-88 (5th Cir. 1999)

(rejecting the “argument that denying fed eral court review of a

successive habeas application alleging that constitutional

viol ations resulted in the conviction of an innocent person

contravenes due process and c onstitutes cruel and unusual

punishment”).

18 C f. Felder v. Johnson

, 204 F.3d 168, 171 (5th Cir. 2000)

(holding that a pro se prisoner’s incarceration before the

enactment of the AEDPA and his lack of notice of the statute of

limitations “does not present an extraordinary circumstance

warranting equitable tolling”); F isher

, 174 F.3d at 714 (holding

that a lack of notice of AEDPA provisions does not warrant

equitable tolling); Scott v. Johnson , 227 F.3d 260, 263 (5th Cir.

2000) (denying a request for equitable tolling bas ed on an

“inadequate law library” in the petitioner’s prison).

19 unresolved at the time of Fierro’s petition, we therefore hold that

application of the statute of limitations in this case does not

violate Fierro’s due process rights. 17

We recognize that the application of procedur al rules may

appear formalistic

-- particularly in a death penalty case

-- when

applied to bar a facially plausible habeas petition because of an

error by habeas counsel. We emphasize, however, that Congress has

imposed a strict one-year limitations period for the filing of all

habeas petitions under the AEDPA, subject only to the narrowest of

exceptions. The petitioner, through his counsel, clearly had

notice of this potential bar to his claim for federal relief and

yet imprudently failed to abide by the statute. This case simply

does not present the sort of rare and exceptional circumstances

that would justify equitable tolling. 18 We therefore conclude that19 We note that our order authorizing Fierro’s successive

petition also referred to “the related issue whether the attorneys

who represented F ierro at trial and on direct appeal were

ineffe ctive for failing to discover the existence of the

supplemental offe nse report on which the claim of perjured

testimony is based.” Recognizing that Fierro did not raise this

claim in state court, the district court dismissed the claim

without prejudice “to give [Fierro] the op portunity to exhaust

state remedies with respect to it .” Because the state has not

challenged this aspect of the district court’s order, it is a final

judgment.

20 Fierro’s successive habeas petition is time-barred because it was

filed outside the AEDPA limitations period.

III

For the reasons set out above, we AFFIRM the judgment of the

district court dismissing Fierro’s peti tion for a writ of habeas

corpus. 19

AFFIRMED.