United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 26, 2006
Charles R. Fulbruge III
Clerk
No. 03-10928
Summary Calendar
LEE EDWIN CALDWELL,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-2706-R
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Before Barksdale, Stewart, and Clement, Circuit Judges.
PER CURIAM:*
Lee Edwin Caldwell, formerly Texas prisoner # 936708, was
convicted after a bench trial of false imprisonment. The
district court dismissed Caldwell’s 28 U.S.C. § 2254 application
as time-barred, but granted a certificate of appealability as to
whether it erred in determining that his application was untimely
and that the limitations period should not be equitably tolled.
Caldwell argues, inter alia, that he is entitled to equitable
tolling based on his medical condition, delays he encountered in
*
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this opinion should not be published and is not precedent except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. 03-10928
-2-
obtaining documents, problems with sending and receiving mail,
limitations on his access to the law library, and intimidation by
his cellmates.
The district court did not err in determining that
Caldwell’s § 2254 application was untimely. The limitations
period was tolled by Caldwell’s first state application for
postconviction relief, which was prepared by counsel. See
§ 2244(d)(2). Caldwell filed a second state application for
postconviction relief, pro se, one year after the decision
denying his first application. His second application was
rejected for failure to comply with TEX. R. APP. P. 73.2, and,
therefore, did not toll the limitations period because it was not
properly filed. See Artuz v. Bennett, 531 U.S. 4, 8 (2000).
Caldwell’s later-filed § 2254 application was untimely. See
§ 2244(d)(1).
Although Caldwell has asserted that he encountered numerous
problems in preparing his second state application for
postconviction relief, he has not supported these allegations
with evidence of the rare and exceptional circumstances necessary
to warrant equitable tolling. See Lookingbill v. Cockrell, 293
F.3d 256, 263-64 (5th Cir. 2002). We note, in particular, the
absence of specific evidence of the impact of his medical
conditions on his ability to file a timely application, the lack
of evidence regarding why certain documents were necessary to the
preparation of his application, and the fact that Caldwell was
No. 03-10928
-3-
able to prepare a lengthy application. The district court did
not abuse its discretion in denying equitable tolling. See Lewis
v. Casey, 518 U.S. 343, 351, 361-62 (1996); Coleman v. Johnson,
184 F.3d 398, 402-03 (5th Cir. 1999); Ross v. Estelle, 694 F.2d
1008, 1011-12 (5th Cir. 1983).
Caldwell’s request for the appointment of counsel is DENIED.
AFFIRMED.