Dimas v. Dretke

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40684
Summary Calendar
CHON PATRICK DIMAS,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:02-CV-206-RHC-HWM
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Chon Patrick Dimas, Texas prisoner #851077, requests a
certificate of appealability (“COA”) to appeal the district
court’s denial of his 28 U.S.C. § 2254 petition as untimely under
28 U.S.C. § 2244(d). See 28 U.S.C. § 2253(c)(1)(A). Demis
argues that because he filed a motion for an extension of time to
file a 28 U.S.C. § 2254 petition before the expiration of the
limitations period, the instant petition is timely. He further
avers that he is entitled to equitable tolling of the limitations

-- 1 of 3 --

No. 04-40684
-2-
period because the magistrate judge, in denying the motion for
extension of time as unnecessary, stated that he had until March
6, 2003, to file a timely 28 U.S.C. § 2254 petition. He argues
that he was misled into believing that he had until that date to
file his petition.
The one-year limitations period of 28 U.S.C. § 2244(d) may
be subject to equitable tolling “in rare and exceptional
circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.
1998). It “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 and citation omitted). A district court’s refusal to
invoke the doctrine of equitable tolling is reviewed for abuse of
discretion. Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000).
The record shows that on April 15, 2002, and before the
expiration of the limitations period, Demis filed his motion for
extension of time to file a 28 U.S.C. § 2254 petition. The
motion was not ruled on until July 1, 2002, after the expiration
of limitations period. The magistrate judge, in denying the
motion as unnecessary, stated that Demis had until March 6, 2003,
to file a timely habeas petition. Demis’s current petition was
filed before that time.
We conclude that Demis has shown rare and exceptional
circumstances warranting the tolling of the limitations period

-- 2 of 3 --

No. 04-40684
-3-
and that reasonable jurists would conclude that the district
court’s procedural ruling was incorrect. See United States v.
Patterson, 211 F.3d 927, 929 (5th Cir. 2000); Slack v. McDaniel,
529 U.S. 473, 484 (2000). Accordingly, a COA is hereby GRANTED.
The district court’s judgment denying Demis’s 28 U.S.C. § 2254
petition as time-barred is hereby VACATED, and this case is
REMANDED to the district court for consideration of the
constitutional claims set forth in Demis’s habeas petition.
GRANT COA; VACATE and REMAND.

-- 3 of 3 --