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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-10379
Conference Calendar

RICHARD WILLIAM GROOMS,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
--------------------
December 14, 1999
Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:
Richard William Grooms has appealed the district court's
judgment dismissing his second federal application for a writ of
habeas corpus as time-barred under 28 U.S.C. § 2244(d). On
appeal from the denial of federal habeas relief, this court
reviews the district court's factual determinations for clear
error and its legal conclusions are reviewed de novo. Thompson
v. Cain, 161 F.3d 802, 805 (5th Cir. 1998).
Section 2244(d)(1), as amended by the Antiterrorism and
Effective Death Penalty Act ("AEDPA"), provides that "[a] 1-year
period of limitation shall apply to an application for a writ of
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habeas corpus by a person in custody pursuant to the judgment of
a State court." § 2244(d)(1). Section 2244(d)(2) provides that
"[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 under this subsection."
§ 2244(d)(2).
Prisoners whose convictions have become final prior to the
April 24, 1996, effective date of the AEDPA have one year after
that date in which to file for § 2254 relief. Flanagan v.
Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998); see United States
v. Flores, 135 F.3d 1000, 1004-06 (5th Cir. 1998) (§ 2255 case),
cert. denied, 119 S. Ct. 846 (1999). Because Grooms's conviction
became final prior to the effective date of the AEDPA, he had at
least until April 24, 1997, to file his § 2254 application.
In Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998),
this court held that the § 2244(d)(2) tolling provision applies
to the one-year limitations period. Noting that § 2244(d)(2)
provides that the limitation period applies to periods during
which a "State post-conviction proceeding or other collateral
review" is pending, Grooms contends that the limitation period
should tolled for the number of days during which his first
federal habeas petition was pending during the year following
April 24, 1996. Grooms argues that the quoted phrase should be
read in the disjunctive and that, accordingly, his first federal
habeas petition constituted "other collateral review" within the
meaning of the statute.
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Recently, in Ott v. Johnson, ___ F.3d ___ (5th Cir. Oct. 21,
1999, No. 98-41211), 1999 WL 796160, *2, this court held that the
"a petition for writ of certiorari to the Supreme Court is not an
application for `State' review that would toll the limitations
period." Accordingly, the period is not tolled during the
ninety-day period within which a state habeas petitioner may file
a petition for writ of certiorari with the Supreme Court. Id.
In reaching this conclusion, the court adopted the reasoning of a
Tenth Circuit case in which the court concluded that the word
"State" in the phrase "State post-conviction proceeding or other
collateral review" modifies both the phrase "post-conviction
review" and the phrase "other collateral review." Ott, 1999 WL
7961160 at *2 n.10 (citing Rhine v. Boone, 182 F.3d 1153, 1156
(10th Cir. 1999)). Ott is controlling in this case.
Grooms argues that he could not pursue state remedies during
the pendency of his first federal habeas proceeding. This
argument raises the question whether the limitations period was
equitably tolled. See Davis v. Johnson, 158 F.3d 806, 811-12
(5th Cir. 1998) (holding that the one-year limitations period is
subject to equitable tolling under appropriate exceptional
circumstances); cert. denied, 119 S. Ct. 1474 (1999). "Equitable
tolling 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." Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (internal quotation
marks omitted). More than one year expired after the first
federal habeas petition was dismissed for failure to exhaust
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state remedies before Grooms filed his second federal habeas
application. Grooms did not attempt to exhaust his state
remedies during that period. Exceptional circumstances meriting
equitable tolling are not present in this case.
IT IS ORDERED that the respondent's motion for leave to
supplement the record with documents from Grooms's first federal
habeas proceeding is GRANTED;
IT IS FURTHER ORDERED that the judgment of the district
court dismissing Grooms's second federal habeas application as
time-barred is AFFIRMED.
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