Webb v. Dretke , 165 F. App'x 375 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 9, 2006
Charles R. Fulbruge III
Clerk
No. 04-10334
Summary Calendar
L.E. WEBB, JR.,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-1705-G
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
L.E. Webb, Jr. (“Webb”), Texas prisoner # 1051215, appeals
the district court’s dismissal in part of his federal writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Specifically, the
district court dismissed Webb’s ineffectiveness claim relating to
the validity of his guilty plea as time-barred. Webb filed his
federal petition for writ of habeas corpus to challenge his 60-
year sentence for aggravated robbery. This court granted a
*
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this opinion should not be published and is not precedent except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. 04-10334
-2-
certificate of appealability (“COA”) on whether the district
court erred in dismissing Webb’s federal writ application in part
as time-barred under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”).
Webb believes that the district court miscalculated the
limitation period because the respondent had determined that he
was four days late, and the district court had essentially given
him four days’ credit on the filing date of his § 2254
application (from July 29, 2003, to July 25, 2003). Webb
misstates the record. The respondent determined that Webb was
five days late. The district court and the respondent both
determined that July 24, 2003, was the last day to file a timely
§ 2254 application. Webb has not identified any other error with
respect to the district court’s limitation calculation.
Webb also argues that he is entitled to equitable tolling of
the AEDPA’s time limitations period. Specifically, he asserts
that he is entitled to equitable tolling from July 5, 2002, the
date he delivered his state writ application to prison officials
for mailing, to July 18, 2002, the date it was stamped by the
Clerk as filed. Webb further argues that he is entitled to
equitable tolling due to the limited resources available to pro
se litigants and because he diligently pursued his 28 U.S.C.
§ 2254 relief.
The district court’s determination that Webb is not entitled
to equitable tolling was not an abuse of discretion. Equitable
No. 04-10334
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tolling of the AEDPA’s one-year limitations period is appropriate
only in “rare and exceptional circumstances.” Felder v. Johnson,
204 F.3d 168, 170-71 (5th Cir. 2000) (internal quotation marks
and citation omitted). Webb is under the impression that he is
entitled to the mailbox rule regarding his state writ
application. However, this court has declined to extend the
mailbox rule to determine the filing dates for state habeas
corpus petitions. See Coleman v. Johnson, 184 F.3d 398, 402 (5th
Cir. 1999). Further, Webb’s assertion that he diligently pursued
his 28 U.S.C. § 2254 relief is not supported by the record. As
the district court noted, Webb did not seek post-conviction
relief until 11 months after his conviction had become final.
Webb offers no explanation for his delay other than his
conclusional allegation that he is a pro se litigant with limited
resources. Webb has failed to demonstrate such rare and
exceptional circumstances so as to warrant equitable tolling.
See Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999).
Accordingly, the district court did not abuse its discretion in
rejecting his equitable tolling arguments. Id.Based on the foregoing, the judgment of the district court
dismissing Webb’s ineffectiveness claim relating to the validity
of his guilty plea as time-barred is AFFIRMED.