Case: 15-20232      Document: 00513725409         Page: 1    Date Filed: 10/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 15-20232                               FILED
                                  Summary Calendar                      October 19, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-20232
                 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, 

, 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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                                  No. 15-20232
                               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, 

, 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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                                  No. 15-20232
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, 

, 475 (5th Cir. 2010) (quoting In
re Wilson, 

, 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, 

, 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, 

, 598 (5th Cir. 2009);
Phillips v. Donnelly, 

, 511 (5th Cir. 2000), modified on reh’g, 

 (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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                                   No. 15-20232
      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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                                 No. 15-20232
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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