IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40506
Summary Calendar
LARRY W. HERRINGTON,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-98-CV-85
September 23, 1998
Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Herrington appeals the district court’s dismissal of his
petition for a writ of habeas corpus, filed pursuant to 28 U.S.C.
§ 2254 (1994), as time barred under 28 U.S.C.A. § 2244(d) (West
Supp. 1998). Appellant maintains that his attorney’s failure to
file the writ should excuse the late filing. We affirm.
Prisoners challenging convictions that became final before
April 24, 1996, the effective date of the Antiterrorism 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 R. 47.5, the court has determined that this opinion should not be published and is not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.
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214, were required to file within a year of that date.
See United States v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998).
Though Flores concerned a § 2255 petition, its analysis applies to
§ 2254 as well. See id. at 1003 n.7. Herrington did not file the
writ until February 7, 1998.
The alleged inadvertance of Herrington’s counsel cannot save
his late filing, because principles of equitable tolling clearly do
not excuse the appellant’s lateness. A prisoner cannot claim
ineffective assistance of counsel with respect to § 2254 petitions,
see Callins v. Johnson, 89 F.3d 210, 212-13 (5th Cir.), cert.
denied, 117 S. Ct. 530 (1996), and the district court here found
that the prisoner could have filed the petition himself. In the
Title VII context, this Court has refused to apply equitable
tolling when counsel’s inadvertence led to a late filing. See
Wilson v. Secretary, Dept. of Veterans Affairs ex rel. Veterans
Canteen Services, 65 F.3d 402, 405 (5th Cir. 1995). Separately,
this Court has made clear that the U.S. Supreme Court decision on
which Wilson was based applies beyond the Title VII context. See
Calhoun County v. United States, 132 F.3d 1100, 1104 (5th Cir.
1998) (applying a portion of the analysis in Irwin v. Department of
Veterans Affairs, 498 U.S. 89, 95-96 (1990), to another federal
statute). Because Herrington therefore cannot meet this Court’s
standard for equitable tolling, we need not decide whether to agree
with the Ninth Circuit that equitable tolling is permissible in
AEDPA cases. See Calderon v. United States Dist. Ct. for the Cent.
2
Dist. of Cal., 128 F.3d 1283, 1288 (9th Cir. 1997), cert. denied,
118 S. Ct. 899 (1998) (allowing for equitable tolling in an AEDPA
case, but only if “‘extraordinary circumstances’ beyond the
prisoner’s control make it impossible to file a petition on time”).
AFFIRMED.
3