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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-20118

ORIN LEE MOLO,
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 Southern District of Texas

March 28, 2000
Before POLITZ, JOHN R. GIBSON,* and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
The district court dismissed Orin Lee Molo's habeas petition
as time-barred. Molo appeals that dismissal, offering a variety of
arguments to invoke equitable tolling. Finding none of these
adequate, we AFFIRM the dismissal of Molo's habeas petition.
I.
Molo was convicted of robbery by assault on October 2, 1968.
His punishment was enhanced for a previous felony conviction, and
he was sentenced to life imprisonment. He claims that he is
actually innocent of the offense because he was insane at the time
he committed it. He demanded money and food from people while
*Circuit Judge of the Eighth Circuit, sitting by designation.

waiting in a parking lot for his mother and doctor to discuss his
psychiatric condition. He raised an insanity defense, and there
was competing psychiatric testimony on the sanity issue. Two
jurors testified at Molo's motion for a new trial that they
believed he was insane but voted to convict because they thought he
should be confined to receive treatment for mental illness.
Molo claims that no appellate court has ever reviewed his
claim on the merits. The Texas Court of Criminal Appeals affirmed
Molo's conviction on January 7, 1970 because his attorney failed to
file a timely appellate brief. His subsequent attorney raised a
jury misconduct claim in a second application for writ of habeas
corpus February 5, 1975, which was denied without written order.
Molo filed a pro se application for writ of habeas corpus on
November 17, 1975, asserting an ineffective assistance of counsel
claim and a claim that he was denied the presumption of innocence
because he was dressed in prisoner's clothing at his trial. That
application too was denied without written order. Molo filed
another state habeas application through his present counsel on
December 10, 1997, which was dismissed as a successive writ.
Molo filed a federal habeas petition on August 25, 1998. The
district court dismissed the petition as barred by the AEDPA's
statute of limitations set forth in 28 U.S.C. § 2244(d).
Recognizing that he had missed the filing deadline, Molo urged that
the exceptional circumstances of the case justified equitable
tolling. The district court held that equitable tolling was
available only when the petitioner had been prevented from filing
2

on time, and that Molo made no such claim. The district court
granted Molo a certificate of appealability on the question whether
his were rare and exceptional circumstances that would justify
equitable tolling. Molo timely appealed.
II.
We review the district court's denial of equitable tolling for
abuse of discretion.1
The one-year limitations period of the AEDPA is a statute of
limitations that is not jurisdictional and is subject to equitable
tolling.2 Equitable tolling, however, is permissible only under
"rare and exceptional" circumstances.3 Petitioners whose
convictions became final before the effective date of the AEDPA
were given a grace period of one year to file their federal habeas
petitions, rendering them timely if filed by April 27, 1997.4 None
of the reasons Molo offers justifies tolling.
Molo argues that the limitations period should be tolled
because he is innocent.5 Without deciding whether proof of factual
innocence would toll the limitations period, we find that Molo does
1See Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.
1999)(noting that de novo review applies where district court
denies equitable tolling as a matter of law). In the instant case,
the district court declined equitable tolling as an exercise of
discretion, finding that Molo's circumstances were not "rare and
exceptional."
2Davis v. Johnson, 158 F.3d 806, 807 (5th Cir. 1998).
3See Davis, 158 F.3d at 811.
4Flanagan v. Johnson, 154 F.3d 196, 201 (5th Cir. 1998).
5See Felder v. Johnson, No. 98-21050, 2000 WL 144178, at *2
(5th Cir. Feb. 9, 2000).
3

not show that he is factually innocent. Three physicians testified
at Molo's trial. Molo's family doctor, who had treated him for
mental illness, testified that Molo was mentally ill and should
receive treatment. Two Harris County, Texas, psychiatrists
testified that Molo was sane at the time of the offense. Molo
argues that because the psychiatrists finding him sane examined him
one and seven weeks after the offense, respectively, and his family
physician examined him immediately prior to the offense, the
evidence was insufficient for the jury to find him sane. We
disagree. Molo has not shown that he was factually innocent.
Molo argues that failing to toll the AEDPA's statute of
limitations in his case will violate the Suspension Clause of Art.
I, § 9. The 1-year limitations period of the AEDPA does not
violate the Suspension Clause unless it "renders the habeas remedy
'inadequate or ineffective' to test the legality of detention."6
Molo has not shown how the limitations period made the habeas
remedy inadequate or ineffective for him, since nothing prevented
him from filing a petition before the limitations period expired.
Molo argues that the district court should have invoked
equitable tolling because he was denied any appeal of his case
through ineffective assistance of counsel and state courts'
erroneous application of state law. Whether Molo had effective
assistance of counsel on direct appeal in state court is not
relevant to the question of tolling the AEDPA's statute of
6See Miller v. Marr, 141 F.3d 976, 977 (10th Cir.
1998)(quoting Swain v. Pressley, 430 U.S. 372, 381 (1977)).
4

limitations. A criminal defendant has a right to effective
assistance of counsel on a first appeal as of right.7 An alleged
violation of that right does not toll the AEDPA's statute of
limitations.8 The same is so of his claim that the Texas Court of
Criminal Appeals erred under state law when it denied his out-of-
time appeal.9
Neither does Molo's jury misconduct claim toll the AEDPA's
limitations period. At a hearing on his motion for a new trial,
two jurors testified that they believed Molo was insane but voted
to convict so he would be confined to receive treatment for mental
illness. The facts underlying this claim did not prevent Molo from
filing a federal habeas petition until the limitations period
expired.
III.
None of the reasons Molo advances are sufficient to justify
tolling of the AEDPA's limitations period. We affirm the district
court's dismissal of his petition as time-barred.
AFFIRMED.
7See Evitts v. Lucey, 469 U.S. 387, 395 (1985).
8Molo argues that the evidence was insufficient to convict
him, and that his conviction likely would have been reversed on
direct appeal. Even if that is so, his ineffective assistance of
counsel claim does not toll the AEDPA's statute of limitations.
9Molo argues that the Texas Court of Criminal Appeals erred
when it denied his 1975 pro se application for writ of habeas
corpus under Ex parte Raley, 528 S.W.2d 257 (Tex. Crim. App. 1975,
no pet.), overruled on other grounds, Hurley v. State, 606 S.W.2d
887, 889 (Tex. Crim. App. 1980, pet. ref'd). Federal habeas review
does not extend to state court conclusions of state law. See
Fairman v. Anderson, 188 F.3d 635, 641 (5th Cir. 1999).
5