Holmesly v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 16, 1999
• Docket: 98-40774
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40774 Conference Calendar

MARION BOOTH HOLMESLY, JR.,

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 USDC No. G-97-CV-564 - - - - - - - - - -

June 16, 1999

Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Marion Booth Holmesly, Jr., Texas prisoner #498018, filed

the instant application for habeas corpus relief pursuant to 28

U.S.C. § 2254. The district court dismissed the application as

time-barred under 28 U.S.C. § 2244(d) because the instant

application was filed more than one year after Holmesly’s

conviction became final, but granted a certificate of

appealability regarding whether this case warrants equitable

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-40774 -2-

tolling of the limitations period. Holmesly argues that his

retained appellate counsel failed to file a motion for rehearing

and a petition for discretionary review in state court, as he had

instructed him to do, and that Holmesly had filed the instant

application as soon as he became aware of his counsel’s failure

to file.

In Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998),

cert. denied, 119 S. Ct. 1474 (1999), this court held that the

principle of equitable tolling applied to § 2244(d)’s limitations

period. Equitable tolling is available only “in rare and

exceptional circumstances.” Id. at 811. Holmesly’s counsel’s

alleged failure to file and Holmesly’s apparent failure to keep

himself apprised of the status of his case fail to meet this

standard. See Irwin v. Department of Veterans Affairs, 498 U.S.

89, 96 (1990)(“principles of equitable tolling . . . do not

extend to what is at best a garden variety claim of excusable

neglect.”); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,

151 (1984)(“One who fails to act diligently cannot invoke

equitable principles to excuse that lack of diligence.”).

Accordingly, the district court’s judgment is AFFIRMED.