IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50937
Summary Calendar
BRUCE DANIEL HILL,
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 Western District of Texas
USDC No. SA-99-CV-1122
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July 6, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Bruce Daniel Hill appeals the district court’s dismissal of
his 28 U.S.C. § 2254 application as time-barred. He contends
that he is entitled to equitable tolling of the limitations
period due to mental and physical incompetency, confiscation of
his legal materials, and delay in notification of denial of state
writ of habeas corpus.
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), a state prisoner is subject to a one-year period
*
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that this opinion should not be published and is not precedent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. 00-50937
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of limitations for filing a § 2254 application. § 2244(d)(1).
The one year-limitations period typically runs from the date on
which the challenged judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review. Id. This court “allow[s] a prisoner whose conviction
became final before AEDPA’s [April 24, 1996,] effective date a
reasonable length of time -- a grace period -- during which to
file his petition.” See Fisher v. Johnson, 174 F.3d 710, 711-12
(5th Cir. 1999). One year presumptively constitutes a reasonable
grace period in this context. Id. at 712.
The § 2244(d)(1) limitations period and the grace period may
be equitably tolled, but only in “rare and exceptional
circumstances.” See Felder v. Johnson, 204 F.3d 168, 169-71 (5th
Cir. 2000). A district court’s decision not to apply the
doctrine of equitable tolling is reviewed for abuse of
discretion. See Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.
1999).
Hill’s convictions became final on July 25, 1990. To be
timely, Hill’s § 2254 application should have been filed on or
before April 24, 1997. See Flanagan v. Johnson, 154 F.3d 196,
202 (5th Cir. 1998). However, Hill did not file his application
until October 7, 1999, over two years after the deadline.
Hill alleged in district court that he was entitled to
equitable tolling due to his physical and mental condition, the
confiscation of his legal materials, and because there was a
delay in notifying him that his state writ of habeas corpus was
denied. Although allowing for specified periods of equitable
No. 00-50937
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tolling for these various reasons, the district court determined
that Hill’s federal petition was nonetheless untimely.
Even when a petitioner demonstrates "rare and exceptional
circumstances" for missing the federal habeas deadline, he also
must have pursued his claims diligently to justify equitable
tolling of the statute of limitations. See Fisher v. Johnson,
174 F.3d 710, 715 (5th Cir. 1999), cert. denied, 121 S. Ct. 1124
(2001); see also Covey v. Arkansas River Co., 865 F.2d 660, 662
(5th Cir. 1989) (“[E]quity is not intended for those who sleep on
their rights.”). The district court found that Hill was not
diligent in his pursuit of relief because after being notified
that his state writ of habeas corpus was denied, he waited nine
months to file a § 2254 petition.
Hill has not established that he was diligent in his pursuit
of federal habeas relief, therefore he is not entitled to
equitable tolling. See Coleman v. Johnson, 184 F.3d 398, 401-02
(5th Cir. 1999).
The dismissal of Hill’s § 2254 application as time-barred is
AFFIRMED.