IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20560
Summary Calendar
FRANK DIGGES,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-2420
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March 18, 1999
Before REAVLEY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
In July 1997, Frank Digges, Texas state prisoner # 473881,
filed a federal petition for a writ of habeas corpus under 28
U.S.C. § 2254. The respondent filed a motion to dismiss Digges’s
habeas petition, arguing that the petition was untimely under 28
U.S.C. § 2244(d) of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). The district court granted the respondent’s
motion to dismiss, holding that Digges’s petition was barred by
*
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that this opinion should not be published and is not precedent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. 98-20560
-2-
limitations. The district court granted Digges a certificate of
appealability on the issue whether Digges’s habeas petition was
timely filed under the AEDPA.
On appeal, Digges argues that because his state habeas
petition was pending in state court before the one-year
reasonableness period expired, his federal habeas petition should
not have been dismissed under the AEDPA in the light of Lindh v.
Murphy, 117 S. Ct. 2059 (1997). He also argues that he is
entitled to equitable tolling of the statute of limitations. We
have reviewed the record and the briefs of the parties and
conclude that the district court was correct in dismissing
Digges’s petition because it was time-barred under the AEDPA.
Digges’s reasons for delay do not rise to a level warranting an
application of the doctrine of equitable tolling.
AFFIRMED.