* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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 hedid not receive notice ofthe denial ofhisstate 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 ClerkNo. 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 ofimprisonment. 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 i nsufficient 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 oflimitations 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 hisfailure toreceive notice that hisstate habeascorpusapplication 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, requestingNo. 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 i n 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 that turns on thefacts and circumstances ofa particular case, equitable tolling does not lend itselfto bright-line rules, but we drawon 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 ofthe date that hisjudgment “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 countedNo. 05-10020

1 The government argues that the recent Supreme Court holding in Bowlesv. Russell , 127 S.Ct. 2360 (2007), removes ourjurisdiction in this case. We disagree. The Court in Bowles prohibited courtsfrom creating equitableexceptionstojurisdictional requirements, such asthe time for filing a notice of appeal. I d. at 2366. This Circuit does not view the AEDPA limitations period as a jurisdictional bar. We wrote:

A plain reading ofthe 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 oflimitations. 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 ofthe ninety-day period for filing a petition for writ ofcertiorari with the Supreme Court. SeeSUP

. 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’sstate habeas application was pending, from October 19, 2000until January 31, 2001, thedate that the TCCA denied his application without written order. Coker had until mid-August 2001 to file a § 2254 petition. Because he did not file 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’sJanuary 31, 2001 denial ofhis 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.” U nited States v. Patterson, 211 F.3d 927, 928 (5th Cir. 2000). 1 The doctrine “applies principally where the plaintiffNo. 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 habeaswrit 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. Davisv. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (internal quotationsand citationsomitted). 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 that the 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 ofhis state habeas corpus application as proofofhis diligence in tracking the proceeding. He notes that he never received a response to either letter, but filed a memorandum ofsupport for his application in June 2003 with the belief that his application was still pending. Coker indicates that he becameNo. 05-10020

2 The government makes no argument refuting Coker’s position that he did not receive notice ofthe 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 ofmail from theState Counsel ofOffendersdated February 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 hisstate habeas corpus application wasdenied waswhen he received thegovernment’s preliminary responsetohis§ 2254petition. Coker filed his § 2254 petition on September 22, 2003. On September 26, 2003, the magistrate judge issued an order noting the possibility ofa time bar pursuant to 28 U.S.C. § 2244(d). The magistratejudge 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 which it indicated that Coker’sapplication had been denied 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. SeePhillips, 216F.3d at 511 (“[W]e conclude that the [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] pro cess 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 offact 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. 3No. 05-10020

withoutwritten order on January 31, 2001. The government further argued that Coker should be denied equitable tolling because he failed to pursue habeas corpus reliefdiligently. 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 c

orpus application, s

ee 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 Of fenders, an organization providing legal assistance to indigent offenders, to

assess the status ofhis application. The government also contends that he could have either f

iled 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 that theTCCA refused Coker’s petition for discretionary review on February 9, 2000. Coker did not seek a writ of c ertiorari from the Supreme Court. Therefore, his conviction become final on or about May 9, 2000, the date ofthe expiration ofthe 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 stateNo. 05-10020

4 Indeed, the magistratejudgethat 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); G ray 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 reliefis substantially shorter than the delay ofthe 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 f or equitable tolling if he could establish that he did not receive notice of the denial of his appeal. I d. 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 ofhisstateapplication on June 24, 2003. The government contends that these are merely self-serving statements; however, thegovernment has not rebutted Coker’sstatements. 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 swornNo. 05-10020

5 The preliminary order ofthe magistratejudge, 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 thegovernment responded. Before the government responded, Coker filed a supplemental memorandum, dated November 6, 2003, which stated that hisstate application “has been pending continuously to this present day without a word, since October 30, 2000 before the Court ofCriminal Appeals.” The government responded on November 20, 2003, but before Coker could reply within thirty days per the magistrate judge’s order, the magistratejudge 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 ultimateorder by thedistrict 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. ThisCourt, however, has not previously addressed whether a prisoner has

a duty to inquire about the status ofstate 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 reliefand meets the standard for equitable tolling ofthe federal limitations filing period for his § 2254 petition. IV. CONCLUSION The judgment of the district court is REVERSED and REMANDED.