United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 9, 2004
Charles R. Fulbruge III
Clerk
No. 03-50007
RAMON SORIANO,
Petitioner-Appellant,
v.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(02-CV-467)
Before DAVIS, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Petitioner, Ramon Soriano (Soriano), was convicted by a jury
of aggravated robbery. Soriano’s second federal habeas petition
was dismissed as time barred by the district court. We issued a
Certificate of Appealability (COA) on the issues of (1) whether
Soriano is entitled to equitable tolling of the Antiterrorism and
Effective Death Penalty Act (AEDPA) period of limitations and (2)
whether Soriano’s allegation of a facially valid, factually-based
*
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this opinion should not be published and is not precedent except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.
constitutional claim satisfied the constitutional prong of Slack v.
McDaniel, 529 U.S. 473 (2000). We conclude that the court did not
abuse its discretion in refusing to equitably toll the AEDPA
limitations period and Soriano’s federal habeas petition is
therefore time barred. Because Soriano is procedurally barred from
bringing this federal habeas petition, we need not address the
remaining issue.
I.
In 1995, Ramon Soriano pleaded guilty to two counts of
robbery. Soriano was also convicted by a jury of one count of
aggravated robbery. The aggravated robbery conviction was affirmed
on direct review. Sorriano v. State, No. 08-95-00208-CR (Tex.App.-
El Paso, Sept. 11, 1997).2 On March 26, 1998, the Texas Court of
Criminal Appeals refused Soriano’s Petition for Discretionary
Review (PDR). Sorriano v. State, No. 0014-98 (Tex.Crim.App. March
26, 1998). Soriano did not file a petition for certiorari to the
United States Supreme Court; therefore, Soriano’s conviction became
final on June 24, 1998, 90 days after his PDR was refused. Sup.
Ct. R. 13; 28 U.S.C. § 2244(d)(1)(A).
On December 4, 1998, Soriano filed his first state habeas
petition. This petition was denied on May 24, 2000. Ex parte
Sorriano, Application No. 45,374-01 (Tex.Crim.App. May 24, 2000).
2
The petitioner’s name is spelled “Sorriano” in all state
court documents and “Soriano” in federal court documents. This
discrepancy has no bearing on the outcome of this case.
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On July 24, 2000, Soriano filed his first federal habeas petition.
On April 23, 2001, the magistrate judge recommended denying relief.
Three months later on July 27, 2001, 365 days after filing his
federal habeas petition, Soriano filed an Out-of-Time Motion to
Amend his habeas petition and add seven new claims. On January 29,
2002, the federal district court granted Soriano’s motion and
dismissed his petition without prejudice as a mixed petition
because Soriano had failed to exhaust the seven new claims added by
his July 27 Motion to Amend. Sorriano v. Johnson, No. 00-0215
(W.D.Tex. Jan. 29, 2002). Soriano then filed a second state habeas
petition which was denied on September 18, 2002. Ex Parte
Sorriano, No. 45,374-02 (Tex.Crim.App. September 18, 2002).
Following the denial of his second state habeas petition,
Soriano filed his second federal habeas petition in September,
2002. The district court concluded that the AEDPA one-year period
of limitation within which Soriano was required to file all federal
habeas petitions had expired on December 12, 2000,3 and denied this
3
Soriano’s conviction became final on June 24, 1998. 163
days passed between the day after his conviction became final and
the day he filed his first state habeas petition on December 4,
1998. The limitations period was tolled while Sorriano’s state
application was pending. 28 U.S.C. § 2244(d)(2). The period
began running again on May 25, 2000, the day after his first
state habeas petition was denied. From this date, Soriano had
202 days remaining in the one-year period of limitations.
Therefore, Soriano had until December 12, 2000 to file any and
all federal habeas petitions.
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petition as time barred. 28 U.S.C. § 2244(d)(1).4 This court
granted Soriano a Certificate of Appealability (COA) on the issues
of (1) whether Soriano is entitled to equitable tolling of the
AEDPA limitations period and (2) whether Soriano’s allegation of a
facially valid, factually-based constitutional claim satisfied the
constitutional prong of Slack v. McDaniel, 529 U.S. 473 (2000).
II.
Soriano argues that the district court should have equitably
tolled the AEDPA limitations period. The AEDPA limitations period
may be equitably tolled “where strict application of the statute
would be inequitable.” Davis v. Johnson, 158 F.3d 806, 810 (5th
Cir. 1998). However, the decision whether to equitably toll the
AEDPA’s limitations provision “is left to the discretion of the
district court, and we review such decisions only for abuse of
discretion.” Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002).
A district court should only employ equitable tolling “in rare and
exceptional circumstances.” Davis, 158 F.3d at 811. Generally,
equitable tolling applies only where “the plaintiff is actively
misled by the defendant . . . or is prevented in some extraordinary
way from asserting his rights.” Coleman v. Johnson, 184 F.3d 398,
4
28 U.S.C. § 2244(d)(1) provides, in pertinent part: “A 1-
year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a state court.”
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403 (5th Cir. 1999).5
The burden of proving that equitable tolling is justified is
borne by its proponent. Phillips v. Donnelly, 216 F.3d 508, 511
(5th Cir. 2000). Soriano has yet to offer any explanation as to
why he waited 368 days after he filed his first federal habeas
petition before filing a Motion to Amend his petition and add seven
new, unexhausted claims. In order for equitable tolling to be
applicable, it is necessary that the petitioner have been
prevented, through no fault of his own, from asserting his claim.
See Coleman, 184 F.3d at 403; Cousin, 310 F.3d at 848. Soriano has
not alleged that this delay resulted because he was misled by the
court or the defendant. Nor has Soriano alleged that the
unexhausted claims are based on evidence that could not have been
discovered prior to the expiration of the limitations period. In
fact, other than the section heading claiming his “Entitlement Of
Equitable Tolling,” Soriano’s brief to this court contains
5
We find it important to note that our analysis is limited
to whether equitable tolling is applicable to this case. This
question is distinct from that of whether a district court should
dismiss a mixed petition in its entirety, or simply those claims
that are unexhausted, where it is likely that a second federal
petition will be time barred. See, e.g., Nowaczyk v. Warden, 299
F.3d 69, 71 (1st Cir. 2002); Zarvela v. Artuz, 254 F.3d 374, 379-
383 (2d Cir. 2001); Akins v. Kenney, 341 F.3d 681, 686 (8th Cir.
2003); Thompson v. Sec’y for Dep’t of Corrs., 320 F.3d 1228,
1229-1230 (11th Cir. 2003). COA was only granted on the issue of
equitable tolling and, therefore, we lack jurisdiction to decide
any other issues. Sonnier v. Johnson, 161 F.3d 941, 946 (5th
Cir. 1998).
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absolutely no argument as to why equitable tolling should apply.
Soriano’s lack of any explanation as to why he filed a Motion
to Amend his timely federal habeas petition to add seven
unexhausted claims left the district court with little choice but
to conclude that the reason lies in his lack of diligence in
pursuing his claim. Equitable tolling is not available to those
who do not pursue habeas relief diligently. Cousin, 310 F.3d at
848. For these reasons, we find that the district court did not
abuse its discretion refusing to equitably toll the AEDPA
limitations period.
III.
The second issue in this appeal is whether Soriano’s
allegation of a facially valid, factually-based constitutional
claim satisfied the constitutional prong of Slack v. McDaniel, 529
U.S. 473 (2000). However, we find it unnecessary to address this
claim. Because we conclude that Soriano is not entitled to
equitable tolling of the AEDPA limitations period, his habeas
petition is therefore time-barred, and this issue is moot.
IV.
For the reasons stated above, we conclude that the district
court did not abuse its discretion in refusing to equitably toll
the AEDPA limitations period. We find that Soriano has not
demonstrated the type of “rare and exceptional circumstances” that
would warrant equitable tolling. Accordingly, the ruling of the
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district court is affirmed.
AFFIRMED
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