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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-41089
_______________
ROBERT ANDREW LOOKINGBILL,
Petitioner-Appellant,
VERSUS
JANIE M. COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
June 3, 2002
Before SMITH, BENAVIDES, and
petition for a federal writ of habeas corpus.1
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
1 Section 2244(d)(1) provides: "A 1-year pe-
riod of limitation shall apply to an application for
a writ of habeas corpus by a person in custody
Robert Lookingbill appeals the dismissal, as
pursuant to the judgment of a State court . . . ."
time-barred under the one-year limitations
Section 2244(d)(2) provides an exception: "The
period established by the Anti-Terrorism and
time during which a properly filed application for
State post-conviction or other collateral review
Effective Death Penalty Act of 1996
with respect to the pertinent judgment or claims is
("AEDPA"), 28 U.S.C. § 2244(d), of his
pending shall not be counted toward any period of
(continued...)

We affirm.
affidavit in support of his motion to proceed
IFP; the following day, the federal district
I.
court granted IFP status, appointed federal ha-
Lookingbill was convicted of capital mur-
beas counsel, and granted a stay of execution.
der and sentenced to death. The Texas Court
of Criminal Appeals affirmed his conviction
Lookingbill filed a petition for federal writ
and sentence on April 6, 1994, and denied re-
of habeas corpus on July 23, 1999. The state
hearing on June 8, 1994. The conviction be-
moved for summary judgment, averring that
came final on September 8, 1994, on expira-
the federal petition was time-barred under
tion of the ninety-day period during which he
§ 2244(d). Lookingbill asserted that the peti-
could have applied for writ of certiorari. On
tion was timely filed and that, even if it was
November 22, 1996, counsel was appointed to
not, equitable tolling excused him. The district
represent him during his state habeas pro-
court entered summary judgment, then granted
ceedings, and he filed an application for a state
Lookingbill a certificate of appealability
writ of habeas corpus on April 21, 1997. On
("COA") on the limitations and tolling issues.
March 4, 1998, the Texas Court of Criminal
Appeals denied his state habeas petition, and
II.
on March 12 he moved for reconsideration of
Lookingbill argues that the district court
that denial.2
erred in holding that his federal habeas petition
was not filed within AEDPA's one-year
Lookingbill filed a motion to proceed in
limitations period. We review de novo the
forma pauperis ("IFP") and a motion for ap-
denial of a federal habeas petition on proce-
pointment of federal habeas counsel on May
dural grounds. Emerson v. Johnson, 243 F.3d
19, 1998. The trial court set his execution for
931, 932 (5th Cir. 2001); Johnson v. Cain,
March 9, 1999. On December 16, 1998, the
215 F.3d 489, 494 (5th Cir. 2000). The
Texas Court of Criminal Appeals sent a letter
AEDPA statute of limitations applies to all
to the presiding judge of the district court in-
habeas petitions filed after the Act's effective
dicating that the court had denied the motion
date: April 24, 1996. Kiser v. Johnson, 163
for reconsideration without written order. The
F.3d 326, 327 (5th Cir. 1999). Lookingbill's
letter was filed in the district court on
murder conviction became final before April
December 21, 1998.
24, 1996. Thus, absent any tolling, he had un-
til April 24, 1997, to file an application for fed-
On February 2, 1999, Lookingbill filed an
eral habeas relief. Smith v. Ward, 209 F.3d
383, 384 (5th Cir. 2000); Flanagan v. John-
son, 154 F.3d 196, 200-02 (5th Cir. 1998).
1(...continued)
The parties stipulated, however, that the
limitation under this subsection." See Duncan v.
AEDPA limitations period began to run on
Walker, 533 U.S. 167, 173-76 (2001).
November 22, 1996, when Lookingbill was
2
appointed state habeas counsel,3 and that the
Although Lookingbill claims he filed the
motion to reconsider on March 12, 1998, the
motion was notarized on March 16, which
therefore is the earliest date on which the motion
3 In Pyles v. Morales, No. 396-CV-2838-D,
could have been filed.
(continued...)
2

limitations period ran for 150 days from the
134 F.3d 146, 148 (3d Cir. 1998)). We inter-
appointment of state habeas counsel to the fil-
pret the words "properly filed" narrowly.
ing of the state habeas petition. The limita-
Williams v. Cain, 217 F.3d 303, 307 n.4 (5th
tions period was tolled between April 21,
Cir. 2000); Villegas, 184 F.3d at 470 ("[W]e
1997, when Lookingbill filed his state habeas
ought not assume an overly broad meaning of
petition, and March 4, 1998, when the Court
properly filed." (internal quotation marks omit-
of Criminal Appeals denied the state habeas
ted)). Thus, a properly filed application must
petition. Because Lookingbill filed his federal
meet all procedural requirements. Galindo v.
habeas petition on July 23, 1999, it was un-
Johnson, 19 F. Supp. 2d 697, 701 (W.D. Tex.
timely under § 2244(d) unless the limitations
1998). If there is an exception to an applicable
periods was further tolled.
procedural requirement, and a petition fits
within that exception, the petition is properly
Lookingbill argues that two additional
filed. Smith, 209 F.3d at 385.
events should have tolled the running of limi-
tations. The first was his filing of a motion to
Rule 79.2(d), TEX. R. APP. P., plainly pro-
reconsider the denial of his state habeas peti-
hibits the filing of motions for rehearing in ha-
tion; the second was his motion for appoint-
beas cases: "A motion for rehearing an order
ment of federal habeas counsel.
that denies habeas corpus relief under Code of
Criminal Procedure, articles 11.07 and 11.071,
A.
may not be filed." Id. Nonetheless, "[t]he
Lookingbill claims that the motion to
Court may on its own initiative reconsider the
reconsider the denial of his state habeas pe-
case." Id. Relying on that rule, the district
tition was a "properly filed application for
court reasoned that this discretion was "insuf-
state post-conviction or other collateral re-
ficient to make Lookingbill's petition properly
view" that tolled the limitations period from
filed." That judgment was correct under Fifth
the date he filed the motion to reconsider the
Circuit precedent when the district court wrote
denial of state habeas relief to December 22,
the opinion.
1998. This circuit, like most, holds that "a
properly filed application is one submitted ac-
After the district court issued its opinion,
cording to the state's procedural requirements
however, we decided Emerson, which fol-
. . . ." Villegas v. Johnson, 184 F.3d 467, 469
lowed the reasoning of Artuz v. Bennett, 531
(5th Cir. 1999) (quoting Lovasz v. Vaughn,
U.S. 4 (2000), and held that, "given Artuz and
Texas case law allowing habeas petitioners to
file suggestions or motions for reconsiderati on,
3(...continued)
AEDPA's one-year statute of limitations is
1996 U.S. Dist. LEXIS 22357, at *3 (N.D. Tex.
tolled during the period in which a Texas ha-
Dec. 2, 1996), the Texas Attorney General's office
beas petitioner has filed such a motion." Id. at
agreed that, for "each death-sentenced individual in
935. The court in Emerson cited three Court
Texas who has not filed a state habeas petition, the
of Criminal Appeals cases in which a Texas
statute of limitations under 28 U.S.C. § 2244(d) is
court had entertained a motion for recon-
tolled for the period of time [until] the date of the
actual appointment of counsel by the Court of
Criminal Appeals." Accordingly, Lookingbill's
one-year limitations period began to run on
November 22, 1996.
3

sideration.4 "The tolling lasts only as long as
under § 2244(d)(2). We held that "tolling lasts
the Texas courts take to resolve the motion or
only as long as the Texas courts take to
suggestion for reconsideration." Id.
resolve the motion or suggestion for recon-
sideration." Our limited holding reflected a se-
After the parties had filed their briefs in the
rious concern about tolling the deadline for
instant matter, we decided Melancon v. Kaylo,
motions for reconsideration filed with the
259 F.3d 401 (5th Cir. 2001), holding that the
Court of Criminal Appeals; absent a timeline
clock should not start running again between
for filing and deciding motions for recon-
the date of the state trial court's disposition of
sideration, AEDPA's time limit could toll
a state habeas petition and the petitioner's
indefinitely.
timely filing for direct review at the next level.
Id. at 406. Accordingly, under Emerson and
The Court of Criminal Appeals "resolve[d]"
Melancon, Lookingbill's motion to reconsider
the motion as soon as it decided it and issued
tolled the running of limitations from March 4
the December 16 letter. Filing the letter ruling
to December 16, 1998.
with the trial court did nothing to advance or
dispose of Lookingbill's case; the motion for
In a supplemental letter brief,5 Lookingbill
reconsideration did not continue to "pend"
argues that the district court should have tolled
between the Court of Criminal Appeals' ruling
the limitations period until the day after the
and the filing of the letter. Further tolling
state district court filed the Court of Criminal
would not encourage Lookingbill diligently to
Appeals' letter.6 If we tolled the deadline until
exhaust state remedies; after the Court of
December 22, 1998, Lookingbill's COA would
Criminal Appeals' decision, he had nothing left
be timely.
to do in state court.7 Requiring the Court of
Criminal Appeals to take further steps after its
Section 2244(d)(2) tolls the time limit for
ruling would only frustrate our attempt in
state applications that are "pending." 28
Emerson to cabin the tolling period.
U.S.C. § 2244(d)(2). In Emerson, 243 F.3d
at 935, we considered how long a motion for
Lookingbill argues that we should apply
reconsideration tolls AEDPA's time limit
Texas's "mailbox rule" to toll limitations for
three days past when the letter was mailed.
First, even if we tolled the deadline for three
4 Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim.
App. 2000); Ex parte Smith, 977 S.W.2d 610
(Tex. Crim. App. 1998); Ex parte Graham, 853
7 Lookingbill's case provides an excellent
S.W.2d 565 (Tex. Crim. App. 1993).
example. After filing his motion for recon-
sideration with the Texas Court of Criminal Ap-
5 We asked the parties to submit letter briefs
peals, he had no other possible state remedy.
addressing the impact of Melancon.
Rather than waiting for the court to rule on a
technically forbidden motion, which the court had
6 Lookingbill does not argue that he failed to
no obligation to consider within a particular time
receive actual notice of the Court of Criminal
frame, Lookingbill filed his federal habeas petition.
Appeals' decision until after the filing in state
No one can seriously contend that that the reason
district court. The Court of Criminal Appeals'
for the untimely filing was that he was waiting for
letter ruling listed Lookingbill's counsel as one of
the Cour t of Criminal Appeals to rule on the mo-
the parties to whom a copy was circulated.
tion for reconsideration.
4

days, Lookingbill's COA would be untimely.
the AEDPA deadline because the Court of
Second, although we are sensitive to state law
Criminal Appeals had in fact considered mo-
when determining whether a motion is still
tions for reconsideration.
"pending," federal law still determines the time
limits under AEDPA.8
Trying, as does the dissent, to graft the
generic Texas rules of criminal, civil, and ap-
Federal courts interpret the federal time
pellate procedure onto a discretionary motion
period as running from the event described
that Texas courts consistently refuse to recog-
rather than from receipt of notice.9 For ex-
nize would be quite challenging.10 Despite
ample, in Spencer v. Sutton, 239 F.3d 626, 630
several opportunities for supplemental briefing,
(4th Cir. 2001), the court reversed a district
Lookingbill did not raise any of the state law
court for tolling under AEDPA where the
arguments that the dissent makes for tolling
petitioner had only one day after the state's ac-
the deadline past December 16.
tual denial to file a federal petition, reasoning
that AEDPA's one-year period suffices, even
Where a habeas petitioner fails to brief an
considering the time it takes for notice to
argument adequately, we consider it waived.11
travel through the mails. Id.
We think it especially unwise to interpret the
Texas statutes and rules of procedure iden-
Lookingbill does not point to any other
provision of state law to argue that his habeas
petition is pending. This makes good sense.
10 Beyond forbidding the motion for recon-
No other provision of Texas law applies; Tex-
sideration, Texas state laws and rules simply fail to
as law bars filing the motion we are
regulate it. Analogous state law sources as varied
considering. T
as those regulating review by the Court of Criminal
EX. R. APP. P. 79.2(d). In
Appeals, T
Emerson, 243 F.3d at 935, we agreed to toll
EX. CODE OF CRIM. P. art. 11.017; the
issuance of the mandate, TEX. R. APP. P. 18.1; the
filing of the mandate; TEX. R. APP. P. 18.6; post-
conviction applications for habeas corpus, TEX. R.
8 Artuz, 531 U.S. at 8-9 (giving language of
APP. P. 73; and judgments of the Court of Criminal
§ 2242(d)(2) priority over state law when deter-
Appeals, TEX. R. APP. P. 78, might be applied.
mining whether motion is "properly filed" in state
Criminal cases opining on when Texas cases cease
courts); Emerson, 243 F.3d at 934-35 (focusing on
to pend on direct appeal might also have persuasive
whether motion was practically pending rather than
force. E.g., Ex Parte Thomas, 953 S.W.2d 286,
permitted by Texas law); Flanagan, 154 F.3d at
289 (Tex. Crim. App. 1997). The parties found
200-01 (applying FED. R. CIV. P. 6's timetables,
the sources so conflicting and marginally relevant
rather than state law, to § 2244(d)(2)).
that they recommended certification to the Texas
Court of Criminal Appeals, a course of action we
9 E.g., Halicki v. La. Casino Cruises, Inc., 151
find unnecessary.
F.3d 465, 467 (5th Cir. 1998) (refusing to apply
"mailbox rule" to FED. R. APP. P. 4's time limits,
11 Lockett v. Anderson, 230 F.3d 695, 711 n.27
which begin with the filing of a judgment or order);
(5th Cir. 2000); Trevino v. Johnson, 168 F.3d 173,
Lauzon v. Strachan Shipping Co., 782 F.2d 1217,
181 n.3 (5th Cir. 1999) ("Because they are
1220 (5th Cir. 1985) (refusing to apply mailbox
inadequately argued, we consider these issues
rule to period under Longshore and Harbor Work-
waived."); East v. Scott, 55 F.3d 886, 1007 n.8
ers' Compensation Act that ran from filing of
(5th Cir. 1995) ("Because East does not brief these
order).
arguments on appeal, we deem them abandoned.").
5

tified by the dissent, without the benefit of
bill's motion for appointment of federal habeas
briefing, while relying only on the text of the
counsel did not toll limitations, so his federal
statutes and rules. Then to apply those stat-
petition was time-barred under § 2244(d).
utes and rules to a motion that the Texas rules
expressly forbid risks mangling state law be-
III.
yond recognition.
Lookingbill argues that equitable tolling
should excuse him from AEDPA's one-year
Circuit precedent requires us to establish a
limitations period. We review a denial of
bright-line rule that corresponds to when the
equitable tolling only for "abuse of discretion."
Court of Criminal Appeals actually disposed of
Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.
the motion for reconsideration. Based on the
2000); Fisher v. Johnson, 174 F.3d 710, 713
arguments raised in this appeal, we conclude
(5th Cir. 1999), cert. denied, 531 U.S. 1164
that the court did so in its letter of December
(2001).
16, 1998.
AEDPA's limitations period is subject to
Because the state court denied the motion
equitable tolling and is not a jurisdictional bar.
for reconsideration on that date, the remaining
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.
215 days expired on July 19, 1999. Look-
1998). Therefore, a court may toll the limi-
ingbill filed his application on July 23, 1999,
tations period in "rare and exceptional cir-
making it four days late. Thus, he cannot ar-
cumstances." Id. (emphasis added). Such cir-
gue, based solely on Emerson, that his federal
cumstances would exist, for example, if "the
habeas petition was timely filed.
plaintiff [was] actively misled by the defendant
about the cause of action or [was] prevented in
B.
some extraordinary way from asserting his
Lookingbill argues, though, that his motion
rights." Coleman v. Johnson, 184 F.3d 398,
for appointment of federal habeas counsel
402 (5th Cir. 1999) (quoting Rashidi v. Am.
tolled limitations from May 19, 1998, the date
President Lines, 96 F.3d 124, 128 (5th Cir.
of the motion, to February 3, 1999, when he
1996)). But, a "garden variety claim of excus-
was appointed federal habeas counsel. He
able neglect" by the petitioner does not sup-
cites numerous cases demonstrating the im-
port equitable tolling. Rashidi, 96 F.3d at 128
portance of the right to counsel. He has not,
(quoting Irwin v. Dep't of Veterans Affairs,
however, cited any case in which a motion for
498 U.S. 89, 96 (1990)).
appointment of counsel tolled limitations.
"[A] habeas petition is pending only after a
Lookingbill argues that we should grant
petition for a writ of habeas corpus itself is
equitable tolling for four reasons. First, he
filed." Williams v. Cain, 125 F.3d 269, 274
(5th Cir. 1997) (internal quotation marks
omitted). Thus, the filing of the federal habeas
12(...continued)
petitionSSnot of a motion for appointment of
Moseley v. French, 961 F. Supp. 889, 893 (M.D.
counselSStolls limitations.12 Looking
N.C. 1997) ("Nor is the limitation period tolled
because of petitioner's motion for court appointed
counsel."), rev'd on other grounds sub nom. Tay-
12 See, e.g., 28 U.S.C. § 2254(a); see also
lor v. Lee, 186 F.3d 557 (4th Cir. 1999), cert.
(continued...)
denied, 528 U.S. 1197 (2000).
6

claims that he was unduly burdened by not
equitable tolling would violate the Fifth, Sixth,
having federal habeas counsel appointed until
Eighth, and Fourteenth Amendments.
February 3, 1999. Lookingbill, however, did
Lookingbill has cited no Fifth Circuit prece-
not address this issue in his brief to the district
dent to support this claim. Additionally, as the
court. That failure constitutes a waiver on
district court pointed out, "operating under
appeal.13 Dowthitt v. Johnson, 230 F.3d 733,
time constraints on federal cases [is] not un-
747 n.16 (5th Cir. 2000), cert. denied, 532
usual." Thus, we decline to apply equitable
U.S. 915 (2001); Johnson v. Puckett, 176 F.3d
tolling just because a lawyer is busy. Look-
809, 814 (5th Cir. 1999).
ingbill's federal habeas counsel had sufficient
time to file a federal habeas petition within the
Second, Lookingbill claims that the lack of
limits established by § 2244(d) but did not do
federal habeas counsel prevented him from
so. Consequently, this claim fails.
filing a federal habeas petition. As the district
court pointed out, however, Lookingbill was
Most recently, in his letter brief, Look-
quite aware of the limitations period and could
ingbill argues that we should equitably toll the
have filed a pro se skeletal petition during the
statute because he missed the deadline by only
pendency of his motion for appointment of
four days. In past cases, we have focused on
federal habeas counsel. He did not. Conse-
the reasons for missing the deadline rather
quently, he cannot succeed on this claim.14
than on the magnitude of the tardiness.15 At
the margins, all statutes of limitations and fil-
Third, Lookingbill claims that we should
ing deadlines appear arbitrary. AEDPA relies
apply equitable tolling because his federal ha-
on precise filing deadlines to trigger specific
beas counsel was overburdened by a busy
accrual and tolling provisions. Adjusting the
docket. He argues that failure to provide
deadlines by only a few days in both state and
federal courts would make navigating
AEDPA's timetable impossible. Such laxity
13
would reduce predictability and would prevent
Even assuming, arguendo, that Lookingbill
us from treating the similarly situated equally.
did not waive this argument, it fails, because the
Texas Code of Criminal Procedure does not require
We consistently have denied tolling even
the state in any way to assist petitioners in filing
where the petition was only a few days late.16
their federal habeas petitions. See TEX. CODE
CRIM. PROC. ANN. art. 11.071 § 2(e) (Vernon
2000). Lookingbill cites no provision mandating
15 Fisher, 174 F.3d at 712, 715-16 (refusing to
that the state appoint him counsel for his federal
toll statute of limitations for seventeen days despite
habeas action. Consequently, this claim lacks
prisoner's confinement in psychiatric ward without
merit. See Blackledge v. Allison, 431 U.S. 63, 74
access to glasses or legal materials); Ott v.
(1977).
Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (re-
fusing equitable tolling where petitioner missed
14 See Fisher, 174 F.3d at 714 (noting that ig-
deadline by only a "few days"), cert. denied, 529
norance of AEDPA's limitations period is no
U.S. 1099 (2000).
excuse for filing an untimely federal habeas peti-
tion); cf. United States v. Flores, 981 F.2d 231,
16 Ott, 192 F.3d at 512 (four days late); Kiser
236 (5th Cir. 1993) (noting that pro se status does
v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (
not excuse an untimely filed federal habeas
two weeks late); Fisher, 174 F.3d at 712
petition).
(continued...)
7

Overall, Lookingbill's arguments for equit-
able tolling constitute "garden variety claim[s]
of excusable neglect." Rashidi, 96 F.3d at
128. Because there are no "rare and excep-
tional circumstances," Davis, 158 F.3d at 807,
the district court did not abuse its discretion by
refusing to apply equitable tolling.
All pending motions are denied.
AFFIRMED.
ENDRECORD
16(...continued)
(seventeen days late); Felder v. Johnson, 204 F.3d
168, 171 (5th Cir.) (twenty-one days late), cert.
denied, 531 U.S. 1035 (2000).
8

DENNIS, Circuit Judge, dissenting:
I respectfully dissent.
Section 2244(d)(2) of Title 28 U.S.C. (1994 ed., Supp. IV) provides that "the 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 under this
subsection." A one year period of limitation applies to an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). This case
presents three questions: (1) whether federal courts are required to apply state law in determining
whether an application for state postconviction relief "is pending" within the meaning of this
provision; (2) if so, whether under Texas law the petitioner's application for State post-conviction
review was "pending" at least until written notice was filed in the state district court on December
21, 1998 announcing the final denial of petitioner's motion for rehearing by that appellate court;17
and, alternatively, (3) whether the statute of limitations was equitably tolled because petitioner's
federal habeas petition in this death penalty case was filed untimely due solely to the incompetence
and gross neglect of his federal court appointed counsel. Each question should be answered in the
affirmative, making Lookingbill's petition for post-conviction relief timely filed.
The majority erroneously denies Lookingbill relief, however, because it (1) mistakenly assumes
that it is not required to apply the meaning of state law; (2) exceeds its jurisdiction by deciding this
case according to federal common law rules of its own unauthorized creation; and, in the alternative,
(3) fails to recognize that the statute of limitations was equitably tolled.
17 "If we tolled the deadline until December 22, 1998, Lookingbill's COA would be timely." Maj.Op.p.4.
9

1.
Federal courts are required t o apply governing state procedural law in determining whether an
application for state post-conviction relief "is properly filed" or "is pending" within the meaning of
§ 2244(d)(2). In construing that provision, the Supreme Court, in Artuz v. Bennett, 531 U.S. 4
(2000), held that an application is "`properly filed' when its delivery and acceptance are in compliance
with the applicable [state] laws and rules governing filings."18 Similarly, this court and other federal
circuits have held that a state-court petition "is pending" "from the time it is first filed until finally
disposed of and further appellate review is unavailable under the particular state's procedures."19
Despite the controlling precedents of the Supreme Court and this court, the majority claims that
"[c]ircuit precedent requires us to establish a bright-line [federal common law] rule that corresponds
to when the [Texas] Court of Criminal Appeals actually disposed of the motion for reconsideration"
rather than risk "mangling state law beyond recognition." Without further explanation, the majority
then concludes that, under its "bright line" rule, the state motion for reconsideration was "actually
disposed of" on the date inscribed on the state appellate clerk's letter and that Lookingbill's
application therefore stopped pending in state court on that date. Because this court lacks the
18 Id. at 8. Accord Emerson v. Johnson, 243 F.3d 931, 932-935 (5th Cir. 2001).
19 Williams v. Cain, 217 F.3d 303, 310 (5th Cir. 2000)(quoting Bennett v. Artuz, 199 F.3d 116, 120 (2d
Cir. 1999), affirmed on other grounds, ,531 U.S. 4, 120 S.Ct. 1669, 148 L.Ed. 2d 213 (2000)(internal
quotations omitted); Hizbullahankhamon v. Walker, 255 F.3d 65, 69 (2d Cir. 2001)(same); Currie v.
Matesanz, 281 F.3d 261, 266 (1st Cir. 2002)(same); Fernandez v. Sternes, 227 F.3d 977, 980 (7th Cir. 2000);
Swartz v. Meyers, 204 F.3d 417, 420 (3d Cir. 2000)(same); Taylor v. Lee, 186 F.3d 557, 561 (4th Cir.1999);
Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999); Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th
Cir.1999). Accord Bunney v. Mitchell,262 F.3d 973, 974 (9th Cir. 2001); Melancon v. Kaylo, 259 F.3d 401,
406 (5th Cir. 2001). Thus, the application is `pending,' not only when it actually is being considered by the
trial or appellate court, but also during the `gap' between the trial court's initial disposition and the petitioner's
`timely filing of a petition for review at the next level.'" Currie, 281 F.3d at 266 (citing and quoting from
Melancon, 259 F.3d at 406). "That rule applies to applications for discretionary review as well as to appeals
as of right." Currie, 281 F.3d at 266 n.7 (citing Swartz, 204 F.3d at 421; Taylor, 186 F.3d at 561; Barnett,
167 F.3d at 1323).
10

authority or jurisdiction to supersede the state law meaning of "pending" under § 2244(d)(2) with its
own ad hoc federal common law rule, and because I believe that a conscientious reading and
application of the state law leads to a different result, I must respectfully disagree.
The majority asserts that Lookingbill did not raise any of the following state law arguments for
tolling and, therefore, t hese arguments are waived. This is incorrect. In response to this court's
question whether Texas Courts would decide that a petitioner's application does not cease to pend
until the court of Criminal Appeals' order denying the motion for reconsideration is filed in the trial
court, Lookingbill's counsel stated, "Texas Courts have held that a criminal case is pending on direct
appeal until the appeal has been decided and the state trial court receives and files the mandate of the
Court of Criminal Appeals." As to other questions raised by the panel concerning the term
"pending," Lookingbill joined with the Attorney General in requesting that questions of Texas
procedural law be directed to the Texas Court of Criminal Appeals in the form of certified questions,
a request which the majority denied as "unnecessary."20 The majority has never informed the parties
that their request for certified questions has been denied. They have not, therefore, received notice
that the court considers these arguments waived and have not expressed any intention to waive them.
Furthermore, Lookingbill filed a supplemental letter brief pursuant to Fed. R. App. 28(j) to draw the
court's attention to Currie v. Matesanz,21 which "looked at all available avenues which a petitioner
might legitimately utilize to determine whether a particular application for post-conviction relief was
`pending'" and which "supports Lookingbill's contention that as long as there were [sic] any review
open to Mr. Lookingbill[,] that the application was `pending' for purposes of the AEDPA."
20I would have certified the questions to the state court.
21281 F.3d 261 (1st Cir. 2002).
11

2.
Applying the meaning of the governing Texas procedural law, Lookingbill's application for state
post-conviction review was "pending" at least until written notice was filed in the state district court
on December 21, 1998 announcing the final denial of petitioner's motion for rehearing by that
appellate court. As the majority has recognized, if the limitations period was tolled this long,
"Lookingbill's COA would be timely."22 There are several reasons for reaching this conclusion under
the meaning of the Texas governing law.
a.
The Texas Court of Criminal Appeals is required to expeditiously review all applications for a writ
of habeas co rpus, and, after reviewing the record, enter its judgment remanding the applicant to
custody, or ordering the applicant's release, as the law and facts may justify.23 The record presented
for our review contains only a single judge order which simply denies Lookingbill's application.
Because the Texas Criminal Court of Appeals has not rendered a judgment remanding Lookingbill
to custody or ordering his release, his application is still pending in the state appellate court insofar
as the record discloses.
b.
Texas Rules of Appellate Procedure, Rule 19.1 provides that a "court of appeals' plenary power
over its judgment expires . . . 30 days after the court overrules all timely filed motions for rehearing
and motions to extend time to file a motion." Rule 19.2 further provides that "[i]n a civil case, the
22Maj.Op. p.4.
23Tex. Code Crim. Proc. Art. 11.071(11).
12

court of appeals retains plenary power to vacate or modify its judgment during the periods prescribed
in 19.1 even if a party has filed a petition for review in the Supreme Court." Thus, it is evident that
under Texas law the Court of Criminal Appeals retained plenary power and jurisdiction of
Lookingbill's application for 30 days after it overruled his timely motion for rehearing. If that motion
was overruled on December 16, 1998, as the majority concludes, Lookingbill's application remained
pending within the jurisdiction and plenary power of the Court of Criminal Appeals until January l5,
1999. Consequently, the statute was tolled a sufficient amount of time to make Lookingbill's federal
application herein timely.
c.
The clerk of the appellate court that renders a judgment must issue a mandate in accordance with
the judgment and send it to the clerk of the court to which it is directed when the applicable period
expires.24 In the Supreme Court and the Court of Criminal Appeals, the applicable period is "[t]en
days after the time has expired for filing a motion to extend time to file a motion for rehearing if no
timely filed motion for rehearing or motion to extend time is pending."25
In the present case, the record does not contain a judgment either remanding the petitioner to
custody or ordering his release, as required by Texas Code of Criminal Procedure Art. 11.071, or a
mandate in accordance with such a judgment that was sent to the clerk of the district court, as
required by Texas Rule of Appellate Procedure, Rule 18.1. The letter from the Clerk of the Criminal
Court of Appeals to the presiding judge of the state district court bearing the date of December 16,
24Tex. R. App. Proc. 18.1.
25Tex. R. App. Proc. 18.1(b).
13

1998 merely stated: "This is to advise that the Court has denied without written order motion for
reconsideration on the court's own motion." Thus, that letter does not purport to be a mandate in
accordance with the Court of Criminal Appeal's judgment on the merits as required by Rule 18.1.
In the absence of a mandate, jurisdiction over a cause remains in the appellate court, and an attempt
to proceed below, prior to the return of a mandate, is a clear invasion of an appellate court's
jurisdiction and can be restrained by a writ of prohibition. 26
Consequently, jurisdiction of Lookingbill's petition remained pending in the Court of Criminal
Appeals for at least a sufficient amount of time to make his federal application timely. Even if by a
large stretch of imagination the appellate clerk of court's letter to the presiding judge of the district
court could be considered to be a mandate of a judgment, it is undisputed that it was not filed in the
district court until December 21, 1998 and could not have divested the court of appeals of jurisdiction
or reinvested the district court with the same until that date. Even under this conceit, Lookingbill's
federal petition was timely.
3.
"The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute
of limitations would be inequitable."27 Assuming, arguendo, that Lookingbill's petition was untimely,
I disagree wit h the majority's refusal to grant equitable tolling because a strong argument can be
made that the petition was timely filed and because Lookingbill's twice-requested court-appointed
26 See 6 Tex. Jur. 3d Appellate Review § 815 (citing Dixie Gas and Fuel Co. v. Jacobs, 66 S.W.2d 446
(Tex. Civ. App. Beaumont 1933)). See 6 Tex. Jur. 3d Appellate Review § 821 as to the power of the appellate
court to enforce a mandate by the use of extraordinary writs.
27Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998).
14

lawyer, not Lookingbill, was derelict in failing to file a petition before the limitations period expired.
In his brief before this court, Lookingbill argues that the court should equitably toll the time period
between his first request for postconviction counsel on May 19, 1998 and the ultimate appointment
of federal counsel on February 3, 1999.
Although the general rule is that equitable tolling should only be applied in "rare and exceptional
circumstances,"28 recently the Third Circuit, in Fahy v. Horn, held that the confusion surrounding the
AEDPA's st atute of limitations warranted equitable tolling in a capital case even when the
circumstances were not exceptional:
Because the consequences are so grave and the applicable law is so confounding and unsettled,
we must allow less than "extraordinary" circumstances to trigger equitable tolling of the
AEDPA's statute of limitations when a petitioner has been diligent in asserting his or her claims
and rigid application of the statute would be unfair.29
Lookingbill's arguments for equitable tolling are more than "garden variety claim[s] of excusable
neglect"30 and he was clearly diligent in pursuing his claims by seeking federal counsel during the
pendency of his state habeas petition. Although there is no constitutional right to appointment of
counsel in collateral review, the State of Texas and the United States government have conferred a
statutory right to the appointment of counsel in death penalty habeas proceedings.31
After the
application for a writ of habeas corpus had been denied by the Court of Criminal Appeals on March
5, 1998, Lookingbill's state-appointed counsel filed a motion for appointment of federal habeas
counsel, but no action was t aken by the federal court. Lookingbill filed a second motion for
28Id. at 807.
29240 F.3d 239, 245 (3d Cir.), cert. denied, 122 S.Ct. 323 (2001).
30Maj. Op. p. 8 (citing Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
31Tex. C. Crim. Proc. art. 11.071; 21 U.S.C. § 848(q).
15

appointment of federal counsel on September 23, 1998, even though his motion for reconsideration
was still pending before the Court of Criminal Appeals. In December, Lookingbill's counsel was
discharged and he remained without representation until February 3, 1999, when the federal district
court finally granted his motion and appointed federal habeas counsel. In my opinion, it would be
fundamentally unfair to penalize Lookingbill for the time elapsed during the pendency of his motion
for appointment of counsel in light of the grave consequences and unsettled state of the law.
Finally, the majority's conclusion that Lookingbill could have filed a skeletal federal habeas corpus
petition pro se imposes an unfair and unrealistic burden upon an unsophisticated prisoner represented
by a dilatory court-appointed attorney. Habeas corpus petitions must meet heightened pleading
requirements and comply with the Supreme Court's doctrines of procedural default and waiver.32
Federal courts can summarily dismiss any habeas petition that appears legally insufficient on its face.33
"Moreover, should a defendant's pro se petition be summarily dismissed, any petition subsequently
filed by counsel could be subject to dismissal as an abuse of the writ."34
For the foregoing reasons, we should grant equitable tolling.35 As we have wisely concluded
before, "[w]e must be cautious not to apply the statute of limitations too harshly,"36 especially where
the consequences of error are so grave.
32McFarland v. Scott, 512 U.S. 849, 856 (1994).
33Id.
34Id.
35Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998).
36Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
16