Robinson v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40291 (Summary Calendar)

DONALD RAY ROBINSON,

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 (G-98-CV-255) -------------------- May 31, 2000

Before POLITZ, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Donald Ray Robinson, pro se Texas

prisoner # 618375, appeals the district court’s dismissal of his §

2254 petition for writ of habeas corpus. The district court

granted a Certificate of Appealability (COA) on whether Robinson’s

alleged mental incapacity could equitably toll the one-year statute

of limitations under the Antiterrorism and Effective Death Penalty

Act (“AEDPA”). Robinson also seeks COA on the underlying

substantive issues, requests appointment of counsel on appeal, and

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. moves this court to supplement the appellate record with medical

records purportedly supporting his claim of mental incapacity.

Whether to invoke equitable tolling is within the discretion

of the district court. See Fisher v. Johnson, 174 F.3d 710, 713

(5th Cir. 1999). The AEDPA’s statute of limitations may be

equitably tolled, but only in “rare and exceptional circumstances.”

See Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000). We

have recognized the possibility that mental incapacity may provide

a basis for equitable tolling. See Fisher, 174 F.3d at 713.

However, Robinson was clearly not prevented by his mental state

from seeking state post-conviction remedies in 1996 or from filing

his current federal petition in 1998, despite his claim that he has

been mentally incapacitated since 1995. See Hood v. Sears Roebuck

& Co., 168 F.3d 231, 233 (5th Cir. 1999). Robinson has simply

provided no evidence or argument supporting his contention that his

mental condition or medication impaired his ability to file his

federal habeas petition within the one-year grace period we allow

to those habeas petitioners whose convictions became final prior to

the AEDPA’s effective date. See Flanagan v. Johnson, 154 F.3d 196,

200-02 (5th Cir. 1998). Thus, the district court did not abuse its

discretion in declining to apply equitable tolling; therefore, we

affirm the judgment of the district court. Consequently, we need

not decide whether Robinson is entitled to COA on his substantive

claims and we deny COA for that reason. With respect to

Robinson’s request for appointment of counsel, he has not

demonstrated that appointment of counsel is in the interest of

2 justice and we deny his motion. See Schwander v. Blackburn, 750

F.2d 494, 502-03 (5th Cir. 1985).

We also deny Robinson’s motion to supplement the record. We

ordinarily will not enlarge the record on appeal to include items

not presented to the district court. See United States v. Flores,

887 F.2d 543, 546 (5th Cir. 1989). In addition, the medical

records, which all date after May 1997, do not demonstrate that

Robinson was mentally incapable of filing his petition prior to

April 24, 1997.

For the foregoing reasons, we affirm the judgment of the

district court; we deny Robinson’s motion for COA; we deny

Robinson’s motion for appointment of counsel; and we deny his

motion to supplement the record.

AFFIRMED; MOTION FOR COA DENIED; MOTION FOR APPOINTMENT OF COUNSEL

DENIED; MOTION TO SUPPLEMENT RECORD ON APPEAL DENIED.