Broseh v. Johnson ( 2000 )

No. 98-11411
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11411
Summary Calendar
JERRY HAROLD BROSEH,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:98-CV-079-C
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March 27, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Jerry Harold Broseh, Texas prisoner # 438382, was granted a
certificate of appealability to appeal the issue whether Broseh’s
delay in receiving a copy of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) constituted a state impediment or
warranted equitable tolling of the one-year limitations period.
Relying upon this court’s decision in Fisher v. Johnson, 174 F.3d
710 (5th Cir. 1999), Broseh argues that this lengthy delay
constitutes a rare and exceptional circumstance warranting
*
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that this opinion should not be published and is not precedent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. 98-11411
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equitable tolling. Broseh does not renew his claim that the delay
constituted a State impediment which would toll the limitations
period. Accordingly, that issue is waived. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993)(arguments not briefed on
appeal are deemed abandoned); Fed. R. App. P. 28(a).
In a recent opinion, this court determined that a prisoner’s
actual ignorance of the AEDPA’s limitations period, even if
attributable to the newly-enacted statute’s complete unavailability
to inmates, can never serve as a basis for equitable tolling.
Felder v. Johnson, ___ F.3d ___ (5th Cir. Feb. 9, 2000, No. 98-
21050), 2000 WL 144178 at *3-*5. Broseh’s equitable tolling
argument is thus foreclosed by Felder. Accordingly, the judgment
of the district court is AFFIRMED.
Broseh’s motion to file a rebuttal brief is DENIED AS MOOT
because he filed a reply brief. To the extent that Broseh has
moved to strike the appellee’s brief as untimely, that request is
DENIED. Fed. R. App. P. 26(a)(4) (legal holidays include any “day
declared a holiday by the . . . state in which is located . . . the
district court that rendered the challenged judgment or order”);
Tex. Gov’t Code Ann. § 662.003(a)(6) (declaring the Friday after
Thanksgiving as a holiday).
AFFIRMED. MOTION TO STRIKE BRIEF DENIED; MOTION TO FILE
REBUTTAL BRIEF DENIED AS MOOT.