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 Gene Fisher, Texas prisoner # 618604, appeals the district
court’s dismissal of his habeas corpus petition as time barred pursuant
to 28 U.S.C. § 2244(d)(1). His main argument is that the district
court should have applied the doctrine of equitable tolling to his case.
Because Fisher’s state court conviction became final prior to April
24, 2996, he had until April 24, 1997 to file his federal habeas
petition. See Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.
1998). The time for filing was then extended to July 29, 1997, pursuant
*
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opinion should not be published and is not precedent except under the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.
to the tolling provision of 28 U.S.C. § 2244(d)(2), as Fisher’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 post-
conviction relief in a timely fashion, and (2) prison officials delayed
the withdrawal of money from his inmate account to pay the filing fee.
The § 2244(d)(1) statute of limitations is subject to equitable tolling
“in rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d
806, 811 (5th Cir. 1998). However, “[o]ne who fails to act diligently
cannot invoke equitable principles to excuse that lack of diligence.”
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 Appeals’ denial of post-conviction relief.
Finding no error by the district court, we affirm the dismissal of
Fisher’s petition.
AFFIRMED.
2