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).
2
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
3
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.
4
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
5
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.
6