Cousin v. Lensing

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 02-30184
Summary Calendar
_______________
SHAREEF COUSIN,
Petitioner-Appellant,
VERSUS
C. MARTIN LENSING,
WARDEN, HUNT CORRECTIONAL CENTER,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
November 12, 2002
Before HIGGINBOTHAM, SMITH, and
CLEMENT Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Shareef Cousin appeals the dismissal of his
28 U.S.C. § 2254 petition for writ of habeas
corpus, contending that the district court erred
in determining his petition was time-barred.
Finding no error, we affirm.
I.
In September 1995, Cousin pleaded guilty
of four counts of armed robbery. In January
1996, he was convicted of an offense unrelated
to the armed robbery charges, the murder of

-- 1 of 6 --

2
Alfred Gerardi. During the penalty phase of
the murder trial, the state presented evidence
concerning, among other matters, Cousin’s
convictions of armed robbery. Cousin was
sentenced to death.
On February 2, 1996, at a sentencing hear-
ing on the armed robbery cases, Cousin
moved for withdrawal of the guilty pleas as
involuntary on the ground that he was unaware
they would be used during the sentencing
phase of the murder trial. The motion was
denied, and Cousin was sentenced to twenty
years’ incarceration on the armed robbery
charges. He did not appeal or timely seek
reconsideration, so the convictions became
final on February 7, 1996, five days after the
sentencing hearing. LA. CODE CRIM. P. art.
914.
On February 12, 1996, Cousin filed an ap-
plication for supervisory writs in state appel-
late court, alleging that the trial court had
erred in denying the motion to vacate the guil-
ty pleas without a hearing, and renewing the
allegation that the pleas were involuntary be-
cause trial counsel had not advised Cousin that
they could be used during the penalty phase.
The appellate court denied the application, and
the Louisiana Supreme Court denied the writs
on April 26, 1996.
At the same time, Cousin was pursuing a
motion for a new trial in his murder case on
various grounds, including the alleged invalid-
ity of the armed robbery guilty pleas. The
state trial court denied the motion, but on Ap-
ril 14, 1998, the Louisiana Supreme Court re-
versed Cousin’s murder conviction on grounds
unrelated to the use of the armed robbery
convictions during the sentencing phase. On
remand, Cousin filed a “Petition for Post-
conviction Relief, and in the Alternative, Mo-
tion To Exclude Evidence of Prior Convic-
tions,” captioned for both the armed robbery
and murder cases. The trial court denied the
motion, the state appellate court affirmed, and
the Louisiana Supreme Court denied the writs
without reasons on January 6, 1999.
On January 19, 1999, Cousin filed the in-
stant § 2254 petition challenging the validity of
his armed robbery convictions. The state
contends that the petition was untimely under
28 U.S.C. § 2244(d), because it was not filed
within the one-year grace period for convic-
tions that became final before the enactment of
the Anti-Terrorism and Effective Death Pen-
alty Act (“AEDPA”). See United States v.
Flores, 135 F.3d 1000, 1006 (5th Cir. 1998).
That period expired on April 24, 1997, almost
two years before Cousin filed his habeas peti-
tion.
The magistrate judge concluded, however,
that the limitations period was tolled, because
Cousin’s appeal of his murder conviction
raised the invalidity of the armed robbery
convictions and thus constituted “other collat-
eral review” of those convictions for purposes
of § 2244(d)(2). Even if this conclusion was
correct, Cousin’s petition was timely only if
filed by April 9, 1999. Because it was not
properly filed until January 10, 2001, it is time-
barred irrespective of whether Cousin’s appeal
of his murder conviction constituted other
collateral review of his armed robbery convic-
tions. Therefore, we need not decide that
issue to affirm the dismissal of the petition as
time-barred.
Cousin submitted this § 2254 petition to the
district court in January 1999 with a motion to
proceed in forma pauperis (“IFP”). That
motion was denied, so the petition could not
be deemed filed until the appropriate filing fee

-- 2 of 6 --

3
had been paid. The record indicates that
notice of denial of the IFP motion was sent to
Cousin’s counsel on January 22, 1999, but it
was not until almost two years later, on Janu-
ary 10, 2001, that the five dollar filing fee was
paid. Cousin’s § 2254 petition was filed by the
clerk on that date, well past the expiration of
the limitations period even under the construc-
tion of § 2244(d)(2) most favorable to Cousin.
Although the district court determined that
the petition was time-barred, it nonetheless
certified two questions for appeal: first, the
question whether the petition is time-barred
when there was no showing that Cousin had
notice that a filing fee was owed; and second,
whether it is fundamentally unfair to dismiss
the petition for failure timely to pay the filing
fee without considering the merits of petition-
er’s claims of innocence.
II.
In certifying appeal on the question whether
Cousin’s petition is time-barred, the district
court raised two distinct issues. First, it dis-
cussed the possibility that the time of filing of
the petition might be evaluated under the leni-
ent “mailbox rule” applicable to filings submit-
ted by pro se prisoners. Second, the court
addressed the possibility that the circumstanc-
es of this case qualify for equitable tolling such
that the limitations period would be extended.
As we explain, neither the “mailbox rule” nor
equitable tolling applies, given the circum-
stances surrounding the filing of Cousin’s
petition.
A.
Rule 3 of the Rules Governing Section
2254 Cases specifically provides that a habeas
petition is not filed unless accompanied by the
filing fee or an order granting leave to proceed
IFP. Rules Governing § 2254 Cases, Rule 3,
28 U.S.C.A. foll. § 2254. Because Cousin’s
IFP motion was denied, the district court
found that his petition was not filed until the
required filing fee was submitted in January
2001, so the petition was time-barred. The
possibility was raised, however, that the leni-
ent treatment typically afforded pro se prisoner
litigants with respect to filing requirements
might apply to Cousin despite the fact that he
is represented by counsel.
In the case of a pro se prisoner, “a habeas
corpus petition should be deemed filed when
the petition is handed over to prison authori-
ties for mailing.” Spotville v. Cain, 149 F.3d
374, 376 (5th Cir. 1998). This “mailbox rule”
applies even if the pro se litigant has not paid
the required filing fee at the time the petition is
turned over for mailing. Id. at 377 (“[T]he
timeliness of [a] petition for purposes of appli-
cation of the effective date of the AEDPA de-
pends, not on a fee payment, but on when [the
petitioner] delivered his papers to prison au-
thorities for filing.”). We decline, however, to
extend this rule to prisoner litigants who are
represented by counsel.
The “mailbox rule” constitutes an exception
to the normal requirements of rule 3 and is
premised on “this court’s traditional disposi-
tion of leniency toward pro se litigants.” Id.
This leniency is justified by the “[unique] situ-
ation of prisoners seeking to appeal without
the aid of counsel.” Houston v. Lack, 487
U.S. 266, 270 (1988). The inability of an un-
represented prisoner litigant to exercise con-
trol over the filing of his pleadings, and his
dependence on prison officials for such filing,
supports a flexible approach to the application
of deadlines. Spotville, 149 F.3d at 378; see
Lack, 487 U.S. at 271-72.
The same rationale does not support appli-

-- 3 of 6 --

4
cation of the mailbox rule to prisoner litigants
who are represented by counsel.1 A prisoner
litigant who is represented by counsel is not
incapable of controlling the filing of pleadings.
Instead, he has an agent through whom he can
control the conduct of his action, including the
filing of pleadings. As a result, he is not re-
stricted in the same manner as one who is
representing himself, nor is he dependent on
the prison system or its officials for his ability
to pursue an action or file necessary pleadings.
Consequently, the justifications for leniency
with respect to pro se prisoner litigants do not
support extension of the “mailbox rule” to
prisoners represented by counsel.2
B.
Cousin argues that the district court should
have equitably tolled the limitations period.3
Although AEDPA’s limitations provision, like
any statute of limitations, may be equitably
tolled, Davis v. Johnson, 158 F.3d 806, 811
(5th Cir. 1998), the decision to invoke equita-
ble tolling is left to the discretion of the district
court, and we review such decisions only for
abuse of discretion. Fierro v. Cockrell, 294
F.3d 674, 679 (5th Cir. 2002).
Equitable tolling is permitted only “in rare
and exceptional circumstances.” Davis, 158
F.3d at 811. Cousin contends that neither he
nor his attorneys received notice of the denial
of his IFP motion and therefore had no way of
knowing that the filing fee had become due.
Cousin claims that this failure of notice was
error by the district court sufficient to justify
1 Cf. Lack, 487 U.S. at 271 (justifying lenient
treatment of pro se prisoner litigants in significant
part because of lack of counsel).
2 Interestingly, other circuits have held that pro
se litigants who employ even a non-attorney in-
termediary to file their pleadings are denied the
beneficial treatment afforded pro se litigants acting
without such agents. See, e.g., Cook v. Stegall, 295
F.3d 517, 521 (6th Cir. 2002) (holding that the
mailbox rule did not apply to pro se prisoner who
sent habeas petition to his daughter for mailing);
United States v. Cicero, 214 F.3d 199, 204-05
(D.C. Cir. 2000) (limitations not tolled where
prisoner forwarded petition to jailhouse lawyer who
later was placed in administrative segregation,
delaying the filing); Paige v. United States, 171
F.3d 559, 560-61 (8th Cir. 1999) (mailbox rule
inapplicable where prisoner mailed petition to
brother for preparation and filing).
3 Cousin initially argues that equitable tolling
does not apply to this case, citing Thompson v.
INS, 375 U.S. 384, 387 (1964), for the proposition
(continued...)
3(...continued)
that the untimeliness of his habeas petition should
be evaluated under the “unique circumstances”
doctrine. Both Thompson and the principal author-
ity upon which it relies, Harris Truck Lines, Inc. v.
Cherry Meat Packers, Inc., 371 U.S. 215, (1962),
address the timeliness of notices of appeal, a very
different question from the one presented here.
Therefore, even if the unique circumstances doc-
trine remains good law, see Lack, 487 U.S. at 282
(Scalia, J., dissenting) (“Our later cases . . . effec-
tively repudiate the Harris Truck Lines approach,
affirming that the timely filing of a notice of appeal
is ‘mandatory and jurisdictional.’”) (quoting
Griggs v. Provident Consumer Discount Co., 459
U.S. 56, 61 (1982)), it does not apply to the limita-
tions period governing habeas petitions.
In any event, even if on point, “Thompson ap-
plies only where a party has performed an act
which, if properly done, would postpone the dead-
line for filing his appeal and has received specific
assurance by a judicial officer that this act has
been properly done.” Osterneck v. Ernst & Whin-
ney, 489 U.S. 169, 179 (1989). As discussed be-
low, the district court issued no such assurance on
which Cousin could have relied.

-- 4 of 6 --

5
equitable tolling of the limitations period.
Equitable tolling is warranted, however, only
in situations “where the plaintiff is actively
misled by the defendant . . . or is prevented in
some extraordinary way from asserting his
rights.” Coleman v. Johnson, 184 F.3d 398,
403 (5th Cir. 1999).
This court has held that such extraordinary
circumstances exist where a petitioner is mis-
led by an affirmative, but incorrect, representa-
tion of a district court on which he relies to his
detriment. United States v. Patterson, 211
F.3d 927, 931-32 (5th Cir. 2000). Even if
there were a failure of notice in this case, there
were no affirmative statements, comparable to
those in Patterson, on which Cousin could
have relied. He was not deceived by the dis-
trict court, nor did any party obstruct his at-
tempts to obtain habeas relief. Instead, he was
harmed by the failure, for almost two years, of
his own attorney adequately to investigate the
status of his petition.
Many courts have considered the question
whether attorney error constitutes “rare and
exceptional circumstances” and have held that
it does not.4 Additional support for the propo
sition that attorney error does not trigger
equitable tolling is the longstanding rule that
prisoners are not entitled to counsel during ha-
beas proceedings and thus cannot state a claim
for ineffective assistance during those proceed-
ings. See Coleman v. Thompson, 501 U.S.
722, 752 (1991). Moreover, a petitioner’s
ignorance or mistake is insufficient to warrant
equitable tolling. Coleman, 184 F.3d at 402.
Following these cases, it seems evident that
counsel’s mistake does not warrant equitable
tolling, particularly under the circumstances
presented here, where counsel inexplicably
waited for so long. A contrary holding would
lead to perverse results, in that the procedural
errors of trained attorneys would be dealt with
less harshly than would be mistakes by pro se
litigants. Accordingly, we join the other cir-
cuits that have considered this issue and hold
that mere attorney error or neglect is not an
extraordinary circumstance such that equitable
tolling is justified.
In any event, the doctrine of equitable toll-
ing is not applied where a petitioner has failed
to pursue habeas relief diligently. Alexander v.
Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).
The petition at issue in this case remained sub-
mitted but unfiled for almost two years, at
least in part because counsel failed adequately
to investigate the status of the case. It is im-
possible to conclude, from these circumstanc-
4 See United States v. Marcello, 212 F.3d
1005, 1010 (7th Cir. 2000) (holding that the death
of the attorney’s father two weeks before filing
deadline did not constitute extraordinary circum-
stance for equitable tolling purposes); Kreutzer v.
Bowersox, 231 F.3d 460, 463 (8th Cir. 2000)
(holding that attorney’s confusion over applicabil-
ity of § 2244(d)(1) did not justify equitable tolling),
cert. denied, 122 S. Ct. 145 (2001); Harris v.
Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000)
(holding that attorney’s mistaken interpretation of
§ 2244(d) limitation provision did not justify
equitable tolling); Taliani v. Chrans, 189 F.3d
(continued...)
4(...continued)
597, 598 (7th Cir. 1999) (holding that attorney’s
miscalculation of limitations period was not valid
basis for equitable tolling); Sandvik v. United
States, 177 F.3d 1269, 1272 (11th Cir. 1999)
(holding that untimeliness resulting from attorney’s
use of ordinary mail did not justify equitable
tolling).

-- 5 of 6 --

6
es, that the district court abused its discretion
in declining to invoke equitable tolling.
III.
The second question the district court cer-
tified is whether it is fundamentally unfair to
dismiss Cousin’s petition for failure to comply
with filing requirements without considering
the merits of his claims of innocence. The
one-year limitations period established by
§ 2244(d) contains no explicit exemption for
petitioners claiming actual innocence of the
crimes of which they have been convicted. As
a consequence, a petitioner’s claims of actual
innocence are relevant to the timeliness of his
petition if they justify equitable tolling of the
limitations period. We have previously held
that they do not. Felder v. Johnson, 204 F.3d
168, 171 (5th Cir. 2000). Therefore, Cousin’s
claims of innocence do not preclude the dis-
missal of his petition as untimely.
AFFIRMED.

-- 6 of 6 --