Wafer v. Johnson ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-11295
Summary Calendar
Civil Docket #3:99-CV-766-L
_______________________
LEROY WAFER,
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 Northern District of Texas
_________________________________________________________________
December 19, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.*
PER CURIAM:
Appellant Leroy Wafer has been imprisoned since 1979 on
a 50-year sentence for aggravated robbery. He has filed a dozen
state habeas petitions and several prior federal § 2254 petitions.
A COA was granted to permit him to appeal two issues: whether the
district court should have stayed or transferred to this court his
*
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opinion should not be published and is not precedent except under the limited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.
most recent preceding federal habeas petition rather than dismiss
it as successive; and whether the AEDPA 1-year limitations period
should be equitably tolled during the time that Wafer’s next prior
§ 2254 petition and his motion in this court for authorization to
file a successive petition were pending.
Having carefully reviewed these issues based on the
briefs and our independent research, we conclude that the district
court’s denial of habeas relief must be affirmed.
To begin with, even if we wanted to, we could not change
the district court’s decision to dismiss rather than transfer
Wafer’s next preceding habeas petition to this court for successive
habeas review. Wafer did not appeal that action by the district
court, and its propriety is not directly before us.
For purposes of this analysis, however, we may assume
without deciding that the district court erroneously failed to
transfer. Such an error might make available to Wafer the
possibility that the 1-year AEDPA statute of limitations was
equitably tolled at least while his next preceding habeas petition
was pending in the district court (about 1 month) and while the
follow-on motion for successive habeas was being considered in this
court (approximately another month). The district court gave Wafer
the benefit of tolling in both these instances and computed that
the instant petition was still untimely. The district court’s
2
computation was not inaccurate.1 Wafer’s instant habeas petition
was filed months after the 1-year AEDPA limitations period had
elapsed, even if his earlier, unsuccessful forays into the district
court and this court are excluded.
For these reasons, the judgment of the district court
rejecting as untimely Wafer’s claim for habeas relief stemming from
the calculation of his potential mandatory release date is
AFFIRMED.
1
Wafer alleges the factual predicate of his claim concerning his
discharge date arose September 15, 1997. Wafer did not file this habeas petition
until March 25, 1999. The only time arguably excludable for equitable tolling
are the periods when his next petition was pending in district court (June 8 -
July 28, 1998) and when his motion for successive habeas authorization was
pending in this court (December 22, 1998 to January 8, 1999).
3