Brooks v. Quarterman ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 16, 2006
Charles R. Fulbruge III
Clerk
No. 05-40551
Summary Calendar
LARRY BROOKS,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:04-CV-324
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Larry Brooks, Texas prisoner # 1012460, was convicted by a
jury of robbery and sentenced to 80 years in prison. He appeals
the district court’s dismissal of his 28 U.S.C. § 2254 petition
as time-barred by the Antiterrorism and Effective Death Penalty
Act (AEDPA). AEDPA provides that a habeas petition must be filed
within one year of “the date on which the judgment became final
by the conclusion of direct review or the expiration of the time
*
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this opinion should not be published and is not precedent except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. 05-40551
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for seeking such review.” 28 U.S.C. § 2244(d)(1)(A) (2000);
Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004).
Brooks moves for a supplemental certificate of appealability
(COA) on the question of whether he should be entitled to the
benefits of the mailbox rule in the filing of his state
postconviction application for relief. However, he
insufficiently briefed this issue and it is therefore waived.
Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). The motion
for COA is DENIED.
Brooks asserts that he is entitled to equitable tolling for
the seven days between the denial of his state postconviction
application by the Texas Court of Criminal Appeals and his
receipt of notice of that denial. The district court’s decision
with respect to equitable tolling is reviewed for abuse of
discretion. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.
1999). Equitable tolling is available in “rare and exceptional
circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.
1998). It principally applies when the petitioner is prevented
in some extraordinary way from asserting his rights. Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999). In order for
equitable tolling to apply, Brooks must have diligently pursued
his § 2254 relief. Id. at 403.
Brooks has not established that this delay constitutes a
“rare and exceptional” circumstance warranting tolling of the
limitations period. See Davis, 158 F.3d at 811. His motion for
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en banc initial hearing of his case to resolve the question of
whether all prisoners should receive tolling for the delay
between the denial of state postconviction relief and receipt of
notice of the denial is DENIED.
Brooks asserts that he is also entitled to tolling for the
delay in receiving copies of his trial records from his attorney.
To the extent he is arguing that the one-year period should not
begin until he obtained the records, pursuant to 28 U.S.C.
§ 2244(d)(1)(D), the district court did not grant a certificate
of appealability (COA) on this issue and Brooks did not request
one from us now. Therefore, the claim is not properly before
this Court. See Lackey v. Johnson, 116 F.3d 149, 151-52 (5th
Cir. 1997). As to Brooks’s equitable tolling claim, he again has
not established that he is entitled to relief on this ground.
See Davis, 158 F.3d at 811; Ott v. Johnson, 192 F.3d 510, 514
(5th Cir. 1999). The judgment of the district court is thus
AFFIRMED.