* 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. 05-10020

THOMAS LANE COKER

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION 

Respondent-Appellee

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:03-CV-2146

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

This Court granted Thomas Lane Coker a Certificate of Appealability

(“COA”) solely on the issue of whether the limitations period should have been

equitably tolled because he did not receive notice ofthe denial of his state habeas

application. Coker v. Dretke, No. 05-10020, slip op. at 2 (5th Cir. June 8, 2006).

For the following reasons, the district court’s denial of habeas corpus relief is

REVERSED and REMANDED.

United States Court of Appeals

Fifth Circuit

F I L E D

March 17, 2008

Charles R. Fulbruge III

Clerk
No. 05-10020

2

I. FACTS AND PROCEEDINGS

Coker was convicted after a bench trial of being a felon in possession of a

firearm and he was sentenced to an enhanced forty-year term of imprisonment.

The Texas Court of Criminal Appeals (“TCCA”) affirmed his conviction on

October 21, 1999, and denied his petition for discretionary review on February

9, 2000. Coker filed a state application for post-conviction relief on October 19,

2000. The TCCA denied the application without a written order on January 31,

2001. Proceeding pro se, Coker filed a federal habeas corpus petition pursuant

to 28 U.S.C. § 2254 on September 22, 2003, arguing that (1) his conviction was

based on evidence seized during an illegal search, (2) there was insufficient

evidence to support his conviction, (3) he received ineffective assistance of trial

and appellate counsel, and (4) the statute of conviction was vague and overly

broad. The government contended that Coker’s petition should be dismissed as

untimely because he did not file within the one-year statute of limitations made

applicable to § 2254 petitions by the Antiterrorism and Effective Death Penalty

Act (“AEDPA”). 28 U.S.C. § 2244(d). On December 3, 2003, the district court

dismissed Coker’s petition and entered judgment, adopting the magistrate

judge’s November 24, 2003 denial of Coker’s § 2254 petition as time-barred.

Coker then moved for a new trial, arguing that the district court entered

final judgment before the ten-day period for filing objections to the magistrate

judge’s report and recommendations had expired. The district court granted

Coker’s motion, vacated its December 3, 2003 entry of final judgment, and

granted Coker’s request for an extension of time to file his objections.

In his objections to the magistrate judge’s report, Coker argued that the

limitations period for filing a § 2254 petition should have been equitably tolled

based on his failure to receive notice that his state habeas corpus application had

been denied. He attached a number of exhibits to his objections, including copies

of letters mailed to the TCCA in June 2001 and June 2002, requesting
No. 05-10020

3

information regarding the status of his state habeas corpus application. He

indicated that he never received a response to those letters. Coker also included

a memorandum of law in support of his state habeas corpus application, which

he mailed to the TCCA in June 2003, thinking that the application was still

pending. He indicated that he finally received a letter from the TCCA dated

December 5, 2003, informing him that his state habeas corpus application had

been denied.

The district court overruled Coker’s objections, accepted the magistrate

judge’s report and recommendations, and dismissed the case. Coker timely

appealed. The district court denied Coker’s motion to proceed in forma pauperis

on appeal and denied his request for a COA.

This Court granted Coker a COA solely on the issue of whether the

limitations period should have been equitably tolled because he did not receive

notice of the denial of his state habeas corpus application. Coker v. Dretke, No.

05-10020, slip op. at 2 (5th Cir. June 8, 2006).

II. STANDARD OF REVIEW

This Court reviews the denial of equitable tolling for abuse of discretion.

Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). “As a discretionary

doctrine thatturns on the facts and circumstances of a particular case, equitable

tolling does notlend itselfto bright-line rules, but we draw on general principles

to guide when equitable tolling is appropriate.” Id.

III. DISCUSSION

A. Period of Limitation for Filing § 2254 Habeas Applications

Generally, a state prisoner must file a § 2254 habeas corpus application

within one year of the date that his 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). The time during which a properly filed application for state

habeas relief or other collateral review is pending, however, is not counted
No. 05-10020

1 The government argues that the recent Supreme Court holding in Bowles v. Russell,

127 S.Ct. 2360 (2007), removes our jurisdiction in this case. We disagree. The Court in Bowles

prohibited courts from creating equitable exceptions to jurisdictional requirements, suchas the

time for filing a notice of appeal. Id. at 2366. This Circuit does not view the AEDPA

limitations period as a jurisdictional bar. We wrote: 

A plain reading of the language of [28 U.S.C.] § 2244, which contains the

AEDPA limitations period, leads to the conclusion that Congress intended that

the limitations period be interpreted as a statute of limitations. The limitations

period does not speak in jurisdictional terms and does not explicitly refer to any

limitations on jurisdiction. . . .

. . . When Congress amended the habeas corpus provisions by enacting

4

toward the limitations period. § 2244(d)(2); see also Fields v. Johnson, 159 F.3d

914, 916 (5th Cir. 1998). 

The judgment against Coker became final on May 9, 2000, after the

expiration of the ninety-day period for filing a petition for writ of certiorari with

the Supreme Court. See SUP. CT. R. 13.1. Accordingly, Coker had one year from

May 9, 2000 in which to file a § 2254 petition. He allowed approximately 162

days to pass before he filed his state habeas corpus application on October 19,

2000. The federal limitation period was tolled approximately three months

while Coker’s state habeas application was pending, from October 19, 2000 until

January 31, 2001,the date thatthe TCCA denied his application without written

order. Coker had until mid-August 2001 to file a § 2254 petition. Because he did

notfile his § 2254 petition until September 2003, the district court dismissed the

petition as time-barred. Coker argues that because he did not receive notice of

the TCCA’s January 31, 2001 denial of his state habeas corpus application until

December 11, 2003, the federal limitation period should have been equitably

tolled until the date he actually received notice of the denial. 

B. Equitable Tolling

The one-year federal limitations period is subject to equitable tolling only

“in rare and exceptional circumstances.” United States v. Patterson, 211 F.3d

927, 928 (5th Cir. 2000).1 The doctrine “applies principally where the plaintiff
No. 05-10020

AEDPA, it took care to separate jurisdiction provisions from this limitationsperiod provision. The explicit grant of jurisdiction to the district courts relating

to the habeas writ is contained in 28 U.S.C. § 2241. Congress chose to insert the

AEDPA limitation amendment into § 2244, which concerns the finality of

determinations and contains provisions relating to non-jurisdictional limitations,

such as restraints on duplicative and frivolous litigation. . . . 

. . . We hold, therefore, that the one-year period of limitations in §

2244(d)(1) of AEDPA is to be construed as a statute of limitations, and not a

jurisdictional bar. As such, in rare and exceptional circumstances, it can be

equitably tolled.

Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (internal quotations and citations omitted).

We read nothing in Bowles that would overturn our decision in Davis. Therefore, we view

Bowles to be inapposite to the case at bar. 

5

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) (internal quotation marks omitted). “‘[E]xcusable

neglect’ does not support equitable tolling.” Ott v. Johnson, 192 F.3d 510,

513–14 (5th Cir. 1999). We have established that a statute of limitations should

be tolled if a petitioner, exercising due diligence, could not timely uncover

essential information that was predicate to his claim. See Pacheco v. Rice, 966

F.2d 904, 906–07 (5th Cir. 1992). “Although we have not found any cases

discussing who bears the burden of proof concerning equitable tolling in the

AEDPA context, we believe the [petitioner] should bear this burden.” Phillips

v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on reh’g, 223 F.3d 797 (5th

Cir. 2000). 

Coker argues thatthe district court erred in denying equitable tolling and

dismissing his § 2254 petition as untimely. He points to his letters directed to

the TCCA in June 2001 and June 2002 requesting information regarding the

status of his state habeas corpus application as proof of his diligence in tracking

the proceeding. He notes that he never received a response to either letter, but

filed a memorandum of support for his application in June 2003 with the belief

that his application was still pending. Coker indicates that he became
No. 05-10020

2 The government makes no argument refuting Coker’s position that he did not receive

notice of the denial, but instead argues that Coker was not diligent in pursuing habeas corpus

relief. The government presented excerpts from a prison incoming mail log, indicating that

Coker received two pieces of mail from the State Counsel of Offenders datedFebruary 13, 2001

and March 14, 2001. He received nothing from the Texas Court of Criminal Appeals. This log,

therefore, is nondispositive and does not refute Coker’s sworn statements.

3 The first time Coker may have become aware that his state habeas corpus application

was denied was when he received the government’s preliminary response tohis § 2254 petition.

Coker filed his § 2254 petition on September 22, 2003. On September 26, 2003, the magistrate

judge issued an order noting the possibility of a time bar pursuant to 28 U.S.C. § 2244(d). The

magistrate judge directed the government to provide a preliminary response within sixty days

to identify the date that Coker’s state habeas corpus application was denied and to discuss

whether the § 2254 petition should be time-barred. On November 20, 2003, the government

provided a preliminary response, in whichitindicatedthat Coker’s applicationhadbeendenied

6

“exhausted” with the TCCA and proceeded to file his § 2254 petition in federal

court in September 2003.

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

tolling. See Phillips, 216F.3d at 511 (“[W]e conclude thatthe [four-month] delay

in receiving notification . . . could qualify for equitable tolling.); Fisher, 174 F.3d

at 715 (finding that a delay in receiving information for “months and months”

may qualify for equitable tolling). In addition to the requirement that Coker

show a “substantial” delay in receiving notice of the denial of a state habeas

corpus application, to qualify for equitable tolling, he must also have “pursued

the [habeus corpus relief] process with diligence and alacrity” after receiving

that notification. Phillips, 216 F.3d at 511. 

1. When did Coker receive notice of TCCA’s denial of his state habeas

corpus application?

The district court did not make a finding of fact regarding Coker’s alleged

non-receipt of notice of the denial of his state habeas application. The record

contains no evidence that refutes Coker’s claim that he failed to receive notice,

and in its brief, the government stops just short of conceding this point.2 The

only record document that apprises Coker of the January 2001 state habeas

application denial is a letter from the TCCA dated December 5, 2003.3
No. 05-10020

without written order on January 31, 2001. The government further argued that Coker should

be denied equitable tolling because he failed to pursue habeas corpus relief diligently. Fifteen

days later, on December 5, 2003, the TCCA sent an official letter to Coker, informing him that

his state application had been denied in January 2001.

7

Although we have remanded other cases for an evidentiary hearing

regarding the date that a petitioner first received notice of the denial of a state

habeas corpus application, see id., we decline to do so here. An evidentiary

hearing would likely reveal nothing more than the record presently indicates

and would waste judicial time and resources. Instead, we conclude from the

record that TCCA did not notify Coker of its denial of his state habeas corpus

application until December 2003. 

2. Has Coker shown that he was diligent in pursuing habeas corpus relief?

The government asserts that Coker has not shown that he was diligent in

pursuing habeas corpus relief, pointing to his delay in filing his state habeas

corpus application following the TCCA’s denial of his petition for discretionary

review and the fact that he did not seek assistance from the State Counsel of

Offenders, an organization providing legal assistance to indigent offenders, to

assess the status of his application. The government also contends that he could

have either filed a writ of mandamus to compel the resolution of the state

application or filed his § 2254 petition and argued that exhaustion of remedies

was futile. Considering the record before us, we do not find these arguments to

be persuasive.

The record shows thatthe TCCA refused Coker’s petition for discretionary

review on February 9, 2000. Coker did not seek a writ of certiorari from the

Supreme Court. Therefore, his conviction become final on or about May 9, 2000,

the date of the expiration of the time for seeking direct review, and the one-year

limitations period for filing a federal habeas corpus petition began to run. See

Roberts v. Cockrell, 319 F.3d 690, 694–95 (5th Cir. 2003). Coker filed his state
No. 05-10020

4

Indeed,the magistrate judge that presided over Coker’s § 2254 petition proceeding has

routinely relied on prison logs to make findings of fact in habeas cases. See Presley v.

Quarterman, No. 3:05-CV-2533, 2007 WL 210115, at *1 (N.D. Tex. Jan. 25, 2007); Brown v.

Dretke, No. 3:02-CV-2277-P, 2006 WL 1627987, at *1 (N.D. Tex. June 12, 2006); Gray v.

Dretke, No. 3-04-CV-2295-P, 2005 WL 1133860, at *3 (N.D. Tex. May 10, 2005) (“The best

evidence of when petitioner deposited his writ in the prison mail system are the prison mail

logs.”). 

8

application for post-conviction relief on October 19, 2000, after approximately

162 days of the limitations period had passed.

Coker’s delay of approximately 162 days before filing for state habeas

corpus relief is substantially shorter than the delay of the petitioner in Phillips,

who allowed 286 days of the limitations period to expire before filing a state

habeas corpus petition. 216 F.3d at 510–11. This Court determined that,

although a significant number of days of the limitation period had passed,

Phillips could qualify for equitable tolling if he could establish that he did not

receive notice of the denial of his appeal. Id. at 511. Coker’s delay of 162 days

before filing for state habeas corpus relief does not, in itself, automatically

preclude his eligibility for equitable tolling.

From the record, it appears that Coker was diligent in pursuing habeas

corpus relief. He sent two letters to the TCCA inquiring about the status of his

application, one dated June 12, 2001, eight months after his petition was filed

and the second letter a year later, dated June 17, 2002. He also filed a

supplemental memorandum in support of his state application on June 24, 2003.

The government contends that these are merely self-serving statements;

however,the government has not rebutted Coker’s statements. The government

could have provided outgoing prison mail logs, which the Texas Department of

Criminal Justice possesses, to show whether Coker sent letters to the TCCA.4

Further, the government contends that Coker’s statements are bald assertions

with no evidentiary value. But Coker has repeatedly made these sworn

statements under penalty of perjury, which qualifies them as competent sworn
No. 05-10020

5 The preliminary order of the magistrate judge, dated September 26, 2003, instructed

the government to respond within sixty days regarding the date the TCCA denied Coker’s

application and whether Coker’s § 2254 petition should be denied as untimely. The order gave

Coker thirty days to reply after the government responded. Before the government responded,

Coker filed a supplemental memorandum, dated November 6, 2003, whichstated that his state

application “has been pending continuously to this present day without a word, since October

30, 2000 before the Court of Criminal Appeals.” The government responded on November 20,

2003, but before Coker could reply within thirty days per the magistrate judge’s order, the

magistrate judge issued his report on November 24, 2003. Afterward, the district court judge

adopted the magistrate judge’s report before the ten-day period for objections expired.

Although the district court judge later vacated that order, giving Coker time to object, the

ultimate order by the district court denying Coker’s § 2254 petition as untimely did not address

his arguments for equitable tolling. 

9

testimony under 28 U.S.C. § 1746. See Hart v. Hairston, 343 F.3d 762, 764 n.1

(5th Cir. 2003). The government has never discredited Coker’s statements.

This Court, however, has not previously addressed whether a prisoner has

a duty to inquire about the status of state court proceedings which would affect

the AEDPA’s limitation period. Neither the magistrate judge nor the district

court made any findings of fact regarding Coker’s diligence in pursuing habeas

corpus relief; in fact, the magistrate judge’s report never addressed Coker’s

arguments for equitable tolling.5 Therefore, we remand for the district court to

conduct an evidentiary hearing regarding Coker’s claim that he diligently

pursued habeas corpus relief and meets the standard for equitable tolling of the

federal limitations filing period for his § 2254 petition. 

IV. CONCLUSION

The judgment of the district court is REVERSED and REMANDED.