Lann v. Dretke , 111 F. App'x 236 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2004
Charles R. Fulbruge III
Clerk
No. 03-41455
Summary Calendar
SIE JOE LANN
Petitioner - Appellant
v.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CV-45
--------------------
Before KING, Chief Judge, and WIENER and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Sie Joe Lann, Texas state prisoner # 842611, has appealed
the district court’s dismissal of his 28 U.S.C. § 2254 habeas
corpus petition as barred by the one-year statute of limitations
of 28 U.S.C. § 2244(d). The district court granted a certificate
of appealability on whether Lann is entitled to equitable tolling
of the statute of limitations. We AFFIRM.
*
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this opinion should not be published and is not precedent except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. 03-41455
-2-
Lann is seeking relief relative to his jury conviction of
murder, for which he is serving a life sentence. After the
judgment was affirmed on direct appeal, Lann’s efforts to obtain
discretionary review by the Texas Court of Criminal Appeals (CCA)
were rejected as untimely. Lann did not file a petition for
certiorari in the Supreme Court.
On April 28, 2000, Lann filed a habeas corpus petition in
the trial court, seeking relief relative to his conviction. A
judge of the CCA denied habeas relief on August 30, 2000. Lann
in effect filed his federal habeas corpus petition on March 14,
2001. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998)
(“mailbox rule” for prisoners).
Lann’s principal argument is that the limitations period
should be equitably tolled for the period from August 31, 2000,
the day after state habeas relief was denied, until the CCA
notified him of the denial, which he says was on March 8, 2001.
Lann admits he received a denial postcard on October 7, 2000, but
he asserts that it informed him of CCA’s denial of mandamus, not
habeas, relief. He has not filed the postcard as one of his
exhibits or explained why not, although he filed 110 exhibits in
the district court. Lann relies on purported copies of letters
that he allegedly wrote to the CCA between October 7, 2000, and
March 7, 2001, as circumstantial evidence that he did not know of
the habeas denial.
No. 03-41455
-3-
The district court correctly found that these letters
clearly appear to be originals rather than file copies and that
the records of the CCA do not indicate that it ever received
them. Thus, the district court did not err by finding that Lann
failed to prove that he did not receive the notice of the CCA’s
habeas denial until March of 2001. “The petitioner bears the
burden of proof concerning equitable tolling . . . .” Alexander
v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (footnote
omitted).
Lann is not entitled to equitable tolling because he slept
on his rights by not filing his federal habeas petition for more
than five months after he learned of the CCA’s denial of habeas
relief. See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir.
1999) (six-month delay). This court recently held that a four-
day lateness beyond the one-year limitations period was not
excusable as being de minimis. Lookingbill v. Cockrell, 293 F.3d
256, 264-65 (5th Cir. 2002). Lann missed the deadline by more
than four months. Thus, the district court did not abuse its
discretion by holding that Lann was not entitled to equitable
tolling of the statute of limitations. See Larry v. Dretke,
361 F.3d 890, 897 (5th Cir.), petition for cert. filed (U.S. July
16, 2004). Consequently, Lann’s motion for the appointment of
counsel is also without merit.
AFFIRMED; MOTION DENIED.