IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40774
Conference Calendar
MARION BOOTH HOLMESLY, JR.,
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. G-97-CV-564
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June 16, 1999
Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Marion Booth Holmesly, Jr., Texas prisoner #498018, filed
the instant application for habeas corpus relief pursuant to 28
U.S.C. § 2254. The district court dismissed the application as
time-barred under 28 U.S.C. § 2244(d) because the instant
application was filed more than one year after Holmesly’s
conviction became final, but granted a certificate of
appealability regarding whether this case warrants equitable
*
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that this opinion should not be published and is not precedent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. 98-40774
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tolling of the limitations period. Holmesly argues that his
retained appellate counsel failed to file a motion for rehearing
and a petition for discretionary review in state court, as he had
instructed him to do, and that Holmesly had filed the instant
application as soon as he became aware of his counsel’s failure
to file.
In Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998),
cert. denied, 119 S. Ct. 1474 (1999), this court held that the
principle of equitable tolling applied to § 2244(d)’s limitations
period. Equitable tolling is available only “in rare and
exceptional circumstances.” Id. at 811. Holmesly’s counsel’s
alleged failure to file and Holmesly’s apparent failure to keep
himself apprised of the status of his case fail to meet this
standard. See Irwin v. Department of Veterans Affairs, 498 U.S.
89, 96 (1990)(“principles of equitable tolling . . . do not
extend to what is at best a garden variety claim of excusable
neglect.”); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,
151 (1984)(“One who fails to act diligently cannot invoke
equitable principles to excuse that lack of diligence.”).
Accordingly, the district court’s judgment is AFFIRMED.