IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-21054
Summary Calendar
JOHNNY R. SIMMONS,
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-98-CV-1445
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February 17, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Johnny R. Simmons, Texas prisoner # 578087, appeals from the
district court’s dismissal of his 28 U.S.C. § 2254 habeas
petition as barred by the one-year statute of limitations
contained in 28 U.S.C. § 2244(d)(1). Simmons obtained a
certificate of appealability from this court to address whether
the one-year limitations period should be tolled under
§ 2244(d)(2) from the date that he mailed his state
postconviction application until the date that he received notice
of its denial. Simmons’ request for the appointment of counsel
is DENIED.
*
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that this opinion should not be published and is not precedent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. 98-21054
-2-
We recently declined to extend the mailbox rule to the
determination of filing dates for state habeas applications.
Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). Instead,
we held that when a prisoner asserts that his ability to file a
federal habeas petition has been affected by a state proceeding,
this court will examine the facts to determine whether the
prisoner is entitled to equitable tolling under § 2244(d)(2).
Id.
Equitable tolling is justified in rare and exceptional
cases. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
The doctrine applies “principally where the plaintiff is actively
misled by the defendant about the cause of action or is prevented
in some extraordinary way from asserting his rights.” Coleman,
184 F.3d at 402 (internal quote and citation omitted). “In order
for equitable tolling to apply, the applicant must diligently
pursue his § 2254 relief.” Id.
Simmons waited more than one month after he allegedly
received notice of the denial of his state postconviction
application to file the instant § 2254 petition. Under these
circumstances, it was not an abuse of discretion for the district
court to find that equitable tolling was not warranted. See Ott
v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). Accordingly, the
judgment of the district court is AFFIRMED.
AFFIRMED. MOTION DENIED.