Fisher vs. Johnson (5th Cir. 1999)

Federal Circuits, 5th Cir. (March 04, 1999)

Docket number: 97-11303

Permanent Link: http://vlex.com/vid/fisher-vs-johnson-18390284
Id. vLex: VLEX-18390284

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U.S. Court of Appeals for the 5th Cir. - William Prince Davis, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 158 F.3d 806 (5th Cir. 1998)

U.S. Court of Appeals for the 5th Cir. - Jewel Spotville, Petitioner-Appellant, v. Burl Cain, Warden, Louisiana State Penitentiary, Angola, La; Richard P. Ieyoub, Attorney General, State of Louisiana, Respondents-Appellees., 149 F.3d 374 (5th Cir. 1998)

U.S. Supreme Court - Baldwin County Welcome Center v. Brown, 466 U.S. 147 <I>(per curiam)</I> (1984)

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Text:

* Pursuant to 5th C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th C IR . R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-11303 Summary Calendar BOBBY GENE FISHER, 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 Northern District of Texas USDC No. 4:97-CV-761-A March 4, 1999 Before JOHNSON, DUHE, and STEWART, Circuit Judges.

PER CURIAM: * Bobby Ge ne Fisher, Texas prisoner # 618604, appeals the district court§ 2244(d)(1). His main argument is that the district court should have applied the doctrine of equitable tolling to his case.

Because Fisher§ 2244(d)(2), as FisherÂ’s state habeas action was pending for 96 days. Fisher filed his federal petition on September 3, 1997, by delivering it to the prison officials for mailing to the district court. See Spotville v. Cain , 149 F.3d 374, 378 (5th Cir. 1998).

Fisher contends that he timely filed his petition because the running of the limitations period should have been equitably tolled.

He aruges that (1) he was not made aware of the denial of his postconviction relief in a timely fashion, and (2) prison officials delayed t he withdrawal of money from his inmate account to pay the fili ng fee. The § 2244(d)(1) statute of limitations is subject to equitable tolling Â“in rare and exceptional circumstances.Â” D avis v. Johnson , 158 F.3d 806, 811 (5th Cir. 1998). However, Â“[o]ne who fails to act diligently c annot invoke equitable principles to excuse that lack of diligence.Â” Baldwin County Welcome Ctr. v. Brown , 466 U.S. 147, 151 (1984). After a careful review of the record, we find that no rare and exceptional circumstances exist in this case to warrant the application of equitable tolling. Further, the record shows that Fisher failed to act diligently in filing his petition after he was made aware of the Texas Court of Criminal AppealsÂ’ denial of post-conviction relief.

Finding no error by the district court, we affirm the dismissal of FisherÂ’s petition.

AFFIRMED.