IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 06-60817 August 28, 2007
Summary Calendar
Charles R. Fulbruge III
Clerk
JOHN RAY KIDD
Petitioner-Appellant
v.
DOLAN WALLER, Warden
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:05-CV-35
Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
John Ray Kidd, Mississippi prisoner # R9542, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred. Kidd is
challenging his convictions for sexual battery and two counts of rape. Kidd
asserts that the limitation period should be tolled because of the egregious
conduct of the State and because of his actual innocence.
*
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should not be published and is not precedent except under the limited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.
The district court granted a certificate of appealability (COA) on the issue
whether Kidd’s newly discovered evidence clearly demonstrated a violation of
Kidd’s constitutional rights and whether it would be a manifest miscarriage of
justice to let the conviction and sentence stand. Id. at 253. The district court
also granted COA on the issue whether egregious errors and misconduct had
occurred that warranted the tolling of the limitation period. Id. at 253.
Kidd acknowledges that the did not file his federal petition within one year
of his discovery of new evidence. Kidd has not demonstrated that he acted with
due diligence in filing his petition, and he has not made a showing of actual
innocence. See Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000).
The dismissal of the petition is AFFIRMED.
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