Castro v. Dretke , 127 F. App'x 739 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-50234
Summary Calendar
BART CASTRO
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 Western District of Texas
USDC No. A-03-CV-270-SS
--------------------
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Following a jury trial, Bart Castro, Texas prisoner number
842522, was convicted of murder and sentenced to serve 55 years
in prison. Castro file a 28 U.S.C. § 2254 habeas corpus petition
to challenge this conviction, and the district court dismissed
his habeas corpus petition as untimely. This court granted
Castro a certificate of appealability on the issue whether he
should receive statutory and equitable tolling for the period
that his first state habeas application, which was returned to
*
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this opinion should not be published and is not precedent except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. 04-50234
-2-
him because it was not in the proper form, was pending. The
instant appeal ensued.
Castro has not shown that he was prevented from timely
filing a 28 U.S.C. § 2254 petition due to exceptional
circumstances that were out of his control or because he was
affirmatively misled. See Felder v. Johnson, 204 F.3d 168,
170-71 (5th Cir. 2000); Ott v. Johnson, 192 F.3d 510, 514 (5th
Cir. 1999). He likewise has not established that he diligently
pursued relief. See Coleman v. Johnson, 184 F.3d 398, 403 (5th
Cir. 1999). Consequently, Castro has not shown that the district
court abused its discretion in determining that he was not
entitled to equitable tolling. See Fisher v. Johnson, 174 F.3d
710, 713 (5th Cir. 1999).
Castro also has not shown that his failure to timely file
his 28 U.S.C. § 2254 petition was due to a state-created
impediment that implicated the Constitution or other federal law.
See 28 U.S.C. § 2244(d)(1)(B); Egerton v. Cockrell, 334 F.3d 433,
438-39 (5th Cir. 2003). He thus has not established that he is
entitled to statutory tolling. He likewise has not shown that
the district court erred in dismissing his 28 U.S.C. § 2254
habeas corpus petition as untimely. The judgment of the district
court is AFFIRMED.