Hill v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 9, 2001
• Docket: 00-50937
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50937 Summary Calendar

BRUCE DANIEL HILL,

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 Western District of Texas USDC No. SA-99-CV-1122 -------------------- July 6, 2001

Before DAVIS, JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

Bruce Daniel Hill appeals the district court’s dismissal of

his 28 U.S.C. § 2254 application as time-barred. He contends

that he is entitled to equitable tolling of the limitations

period due to mental and physical incompetency, confiscation of

his legal materials, and delay in notification of denial of state

writ of habeas corpus.

Under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), a state prisoner is subject to a one-year period

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-50937 -2-

of limitations for filing a § 2254 application. § 2244(d)(1).

The one year-limitations period typically runs from the date on

which the challenged judgment became final by the conclusion of

direct review or the expiration of the time for seeking such

review. Id. This court “allow[s] a prisoner whose conviction

became final before AEDPA’s [April 24, 1996,] effective date a

reasonable length of time -- a grace period -- during which to

file his petition.” See Fisher v. Johnson, 174 F.3d 710, 711-12

(5th Cir. 1999). One year presumptively constitutes a reasonable

grace period in this context. Id. at 712.

The § 2244(d)(1) limitations period and the grace period may

be equitably tolled, but only in “rare and exceptional

circumstances.” See Felder v. Johnson, 204 F.3d 168, 169-71 (5th

Cir. 2000). A district court’s decision not to apply the

doctrine of equitable tolling is reviewed for abuse of

discretion. See Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.

1999).

Hill’s convictions became final on July 25, 1990. To be

timely, Hill’s § 2254 application should have been filed on or

before April 24, 1997. See Flanagan v. Johnson, 154 F.3d 196,

202 (5th Cir. 1998). However, Hill did not file his application

until October 7, 1999, over two years after the deadline.

Hill alleged in district court that he was entitled to

equitable tolling due to his physical and mental condition, the

confiscation of his legal materials, and because there was a

delay in notifying him that his state writ of habeas corpus was

denied. Although allowing for specified periods of equitable No. 00-50937 -3-

tolling for these various reasons, the district court determined

that Hill’s federal petition was nonetheless untimely.

Even when a petitioner demonstrates "rare and exceptional

circumstances" for missing the federal habeas deadline, he also

must have pursued his claims diligently to justify equitable

tolling of the statute of limitations. See Fisher v. Johnson,

174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S. Ct. 1124

(2001); see also Covey v. Arkansas River Co., 865 F.2d 660, 662

(5th Cir. 1989) (“[E]quity is not intended for those who sleep on

their rights.”). The district court found that Hill was not

diligent in his pursuit of relief because after being notified

that his state writ of habeas corpus was denied, he waited nine

months to file a § 2254 petition.

Hill has not established that he was diligent in his pursuit

of federal habeas relief, therefore he is not entitled to

equitable tolling. See Coleman v. Johnson, 184 F.3d 398, 401-02

(5th Cir. 1999).

The dismissal of Hill’s § 2254 application as time-barred is

AFFIRMED.