IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30120
Summary Calendar
ANTHONY JOHNSON,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 98-CV-1097-B
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December 4, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Anthony Johnson, Louisiana prisoner # 113118, appeals from the
district court's denial of his 28 U.S.C. § 2254 petition
challenging his 1986 murder conviction as time-barred. State
prisoners whose judgments became final prior to the April 24, 1996,
enactment date of the Antiterrorism and Effective Death Penalty Act
("AEDPA"), 28 U.S.C. § 2244(d), are afforded a one-year grace
period to file a timely 28 U.S.C. § 2254 petition. See Flanagan v.
Johnson, 154 F.3d 196, 200 (5th Cir. 1998). Johnson argues that a
claim of actual innocence equitably tolls the AEDPA's limitation
*
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that this opinion should not be published and is not precedent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. 01-30120
-2-
period, however, and that he has made a showing of actual
innocence. We conclude that Johnson is not entitled to equitable
tolling.
Johnson's two state habeas applications were denied in 1991
and 1992. He avers that he did not obtain copies of the district
attorney's files showing that the prosecutor withheld exculpatory
information until 1994. However, Johnson did not file his 28
U.S.C. § 2254 petition until March 24, 1998, four years after
receiving this information and eleven months after the AEDPA's
grace period lapsed. "Equitable tolling should only be applied if
the applicant diligently pursues § 2254 relief." Melancon v.
Kaylo, 259 F.3d 401, 408 (5th Cir. 2001); see Scott v. Johnson, 227
F.3d 260, 262 (5th Cir. 2000). We conclude that Johnson did not
diligently pursue relief under 28 U.S.C. § 2254, and he is not
entitled to equitable tolling.
Johnson argues that for the AEDPA's tolling purposes his
petition "relates back" to an earlier petition filed in 1987, which
was dismissed without prejudice, and that failure to review his
petition would violate the Suspension Clause. These issues were
not included in this court's grant of a certificate of
appealability, and we do not consider them.
AFFIRMED.