Mercadel v. Cain

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
January 7, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30586
Summary Calendar
PETER MERCADEL,
Petitioner-Appellant,
versus
BURL CAIN, Warden,
Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
No. 02-CV-3619-K
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Peter Mercadel appeals the denial of his 28 U.S.C. § 2254
petition, wherein he attacked his 1976 conviction of second-degree
murder. We previously ordered that the district court dismiss
without prejudice an earlier petition for failure to exhaust state
remedies. See Mercadel v. Cain, 179 F.3d 271, 278 (5th Cir. 1999).

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No. 03-30586
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The district court held that the instant petition was time-barred
because the first federal petition did not toll the limitations
period of the Antiterrorism and Effective Death Penalty Act
("AEDPA") and that Mercadel was not entitled to equitable tolling.
The district court correctly held that Mercadel originally had
until June 28, 1997, to file his § 2254 petition and that, although
the first petition was dismissed for failure to exhaust, it did not
toll AEDPA's clock. See Duncan v. Walker, 533 U.S. 167, 181
(2001); Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999). Mer-
cadel argues that the limitations period should have been equitably
tolled, given the unfairness of this result and given our prior or-
der to dismiss without prejudice.
A decision with respect to equitable tolling is reviewed for
abuse of discretion. Fisher v. Johnson, 174 F.3d 710, 713 (5th
Cir. 1999). Equitable tolling is appropriate only in "rare and ex-
ceptional circumstances." Fisher v. Johnson, 174 F.3d 710, 713
(5th Cir. 1999)(internal quotation and citation omitted). The doc-
trine 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 and citation
omitted).
From our review of the record, we conclude that the district
court correctly determined that even if equitable tolling applied
to the time that Mercadel's first § 2254 petition was pending, the

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No. 03-30586
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instant petition was still time-barred. Further, although we pre-
viously held that a petition filed after Mercadel exhausted his
state remedies would not be successive, neither our prior decision
nor the district court's prior dismissal without prejudice made any
mention of the timeliness of a subsequent petition. Therefore,
Mercadel was not actively deceived. Compare United States v. Pat-
terson, 211 F.3d 927, 931-32 (5th Cir. 2000); cf. Cousin v. Len-
sing, 310 F.3d 843, 848 (5th Cir. 2002) (noting the absence of af-
firmative statements comparable to those in Patterson on which the
petitioner could have relied), cert. denied, 123 S. Ct. 2277
(2003). The district court did not abuse its discretion by denying
equitable tolling.
AFFIRMED.

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