Turner v. Johnson

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 98-40982
                          _____________________



LARRY B. TURNER,

                                                   Petitioner-Appellant,

                                  versus

GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,

                                             Respondent-Appellee.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Eastern District of Texas
_________________________________________________________________
                          June 15, 1999

Before REAVLEY, JOLLY, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

      Larry B. Turner, Texas prisoner # 488551, was convicted in a

Texas state court in 1988 of aggravated sexual assault.               He was

sentenced to 20 years imprisonment.           On March 10, 1998, Turner

filed a petition in the district court seeking a writ of habeas

corpus pursuant to 28 U.S.C. § 2254.       The respondent filed a motion

to   dismiss   Turner’s   petition   as    time-barred   under   28   U.S.C.

§    2244(d)(1)(A).       The   magistrate    judge   entered    a    report

recommending that the respondent’s motion be granted and that

Turner’s petition be dismissed.      Over Turner’s written objections,

the district court adopted the report and recommendation and

entered a judgment dismissing Turner’s habeas petition.               Turner
filed a timely notice of appeal and a request for a certificate of

appealability (“COA”). The district court granted Turner’s request

for a COA on the issue of whether § 2244(d) was unconstitutional on

grounds that it violated the Due Process Clause and the Suspension

Clause.

     Under § 2244(d)(1)(A), as amended by the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), a habeas petitioner has only

one year from the date his conviction becomes final (either by the

conclusion of direct review or the expiration of the time for

seeking such review) to file a habeas petition.   § 2244(d)(1)(A).

In United States v. Flores, we held that federal prisoners whose

convictions had become final before the April 24, 1996 effective

date of the AEDPA must be accorded a reasonable time after the

AEDPA’s effective date within which to file petition for collateral

relief under 28 U.S.C. § 2255.   135 F.3d 1000, 1004-05 (5th Cir.

1998), cert. denied, 119 S.Ct. 846 (1999).   We determined that one

year, commencing on April 24, 1996, presumptively constitutes a

reasonable time for those prisoners whose convictions had become

final prior to the enactment of the AEDPA to file for relief under

§ 2255.   Id. at 1006; see also Flanagan v. Johnson, 154 F.3d 196,

201 (5th Cir. 1998) (holding that, although we stated in Flores

that the one-year limitations period commences on April 24, 1996,

the twenty-fourth is not part of the limitations period and the

period therefore ends on April 24, 1997).




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     The same rationale may be applied to a § 2254 petition.    See

Flanagan v. Johnson, 154 F.3d 196, 199-200 & n.2 (5th Cir. 1998)

(applying the Flores holding to a § 2254 petition). Because Turner

was challenging a state-court conviction, which became final long

before the effective date of the AEDPA, Turner had one year from

April 24, 1996, to file his § 2254 petition in the district court.

See id.     Turner did not file his § 2254 petition in the district

court until March 10, 1998, making it untimely.

     Turner contends that his due process rights were violated when

the district court dismissed his habeas petition as time-barred.

He asserts that he raised four claims in his federal habeas

petition and that not all of the claims became time-barred on

April 24, 1997. Turner provides no support for this assertion, nor

does he attempt to distinguish which of his claims survives the

time bar.     We must therefore conclude that Turner has failed to

allege a due process violation.

     Turner also makes an argument that the limitations period

should be equitably tolled.     This court has held that equitable

tolling can apply to the limitation period of § 2244(d).   Davis v.

Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert. denied 1999 WL

105620 (U.S., April 19, 1999) (No. 98-8209).     Equitable tolling,

however, should apply only in “rare and exceptional circumstances.”

Id. at 811.    We have held that neither a plaintiff’s unfamiliarity

with the legal process nor his lack of representation during the

applicable filing period merits equitable tolling.    Barrow v. New




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Orleans    S.S.   Ass’n,    932   F.2d   473,   478   (5th    Cir.   1991)     (age

discrimination case).        It is irrelevant whether the unfamiliarity

is due to illiteracy or any other reason.               Id.

     Turner does not indicate why he waited until March 1998 to

pursue federal habeas corpus relief.            He does not allege that he

was unaware of any of his substantive claims until such time, and

he does not allege that officials prevented him from seeking

relief.    Turner has failed to demonstrate that equitable tolling

should apply to his case.         The district court therefore did not err

by dismissing Turner’s petition as time-barred.

     Finally,     Turner     makes    the    argument     that   §   2254(d)    is

unconstitutional because it violates the Suspension Clause.                    The

Suspension Clause, art. 1, § 9, cl. 2, states: “The Privilege of

the Writ of Habeas Corpus shall not be suspended, unless when in

Cases of Rebellion or Invasion the public Safety may require it.”

In United States v. Brierton, we rejected this argument made by a

§   2255   movant.         No.    98-10382    (5th    Cir.    Jan.   12,     1999)

(unpublished).1      In that case, we distinguished between a habeas

petition brought under § 2254 and motions to correct sentences

brought under § 2255.       Id. at 3-5.      We held that, because a § 2255

motion does not amount to a habeas proceeding, Brierton’s argument

that § 2244(d) violated the Suspension Clause was without merit.



     1
     Although Brierton is an unpublished opinion and therefore not
binding on this court, see 5th Cir. R. 47.5.4, we find its
reasoning persuasive in this case.



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     In Sonnier v. Johnson, Sonnier, a § 2254 petitioner, argued

that § 2244(d) violated the Suspension Clause.          161 F.3d 941, 952

(5th Cir. 1998).   He also argued that the district court had erred

by dismissing his habeas petition as time-barred under § 2244(d)

because he had in fact filed it within the one-year prescriptive

period.   Id. at 942-45.      We remanded “for the district court to

revisit the issue of time-bar, including the Suspension Clause

issue if the court again finds the application to be time-barred.”

Id. at 946.

     We   therefore    have   not   addressed   the   application    of    the

Suspension    Clause   to   the   limitations   provision   set    forth    in

§ 2244(d). Other courts have rejected the argument that this

provision of the AEDPA violates the Suspension Clause.            See Miller

v. Marr, 141 F.3d 976, 977-78 (10th Cir.) (petitioner failed to

demonstrate that one-limitations period resulted in inadequacy and

ineffectiveness of habeas remedy), cert. denied, 119 S.Ct. 210

(1998); Lindh v. Murphy, 96 F.3d 856, 867-68 (7th Cir. 1996), rev’d

on other grounds, 177 S.Ct. 2059 (1997).

     In Felker v. Turpin, 518 U.S. 651, 664 (1996), the Supreme

Court ruled that the successive petition requirements of § 2254 did

not violate the Suspension Clause.        In so ruling, the Court noted

the deference the Court accords to Congress in defining the scope

of the writ:

     [W]e have long recognized that “the power to award the
     writ by any of the courts of the United States, must be
     given by written law," Ex parte Bollman, 4 Cranch 75,
     94, 2 L.Ed. 554 (1807), and we have likewise recognized



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      that judgments about the proper scope of the writ are
      "normally for Congress to make." Lonchar v. Thomas, 517
      U.S. 314, ----, 116 S.Ct. 1293, 1298, 134 L.Ed.2d 440
      (1996).

Id.   Although provisions governing the first writ of habeas corpus

present a closer issue than provisions governing successive habeas

petitions, we agree with the reasoning of the Tenth Circuit in

Miller. Turner cannot show that the limitation period has rendered

his habeas remedy inadequate or ineffective.   We therefore reject

Turner’s claim that § 2244 is unconstitutional.

      For the foregoing reasons, the district court’s ruling is

                                                  A F F I R M E D.




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