Derouselle v. Cain , 279 F. App'x 320 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 28, 2008
No. 06-30734
Summary Calendar Charles R. Fulbruge III
Clerk
CHRISTOPHER DEROUSELLE
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CV-1380
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Christopher Derouselle, Louisiana prisoner # 254414, appeals the
dismissal as time barred of his 28 U.S.C. § 2254 petition challenging his murder
conviction. He argues that he is entitled to equitable tolling of the limitations
period because he diligently pursued postconviction relief. Specifically, he
contends that the seven-month delay between the filing of his state habeas
application and his written inquiry to the state court about its status does not
*
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should not be published and is not precedent except under the limited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. 06-30734
militate against a finding of “diligence” on his part in determining whether he
is entitled to equitable tolling.
Derouselle bears the burden of proof concerning equitable tolling and must
demonstrate “rare and exceptional circumstances” warranting its application.
Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). To establish an
entitlement to equitable tolling, he must show (1) that he pursued his habeas
rights diligently and (2) some “‘extraordinary circumstance’” prevented him from
effecting a timely filing. Howland v. Quarterman, 507 F.3d 840, 845 (5th Cir.
2007) (quoting Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007)), petition for
cert. filed, (Mar. 20, 2008) (No. 07-10121).
Derouselle waited seven months after he purportedly filed his state habeas
application before inquiring about its status in September 2002. Furthermore,
regardless whether he received the state court’s November 2002 correspondence
informing him that he had no state application pending before it, Derouselle’s
next correspondence with the state court did not come until seven months after
his September 2002 correspondence, when he moved to supplement his
postconviction application. Notably, the one-year limitations period had already
expired by that time. He then waited an additional two months after the
Louisiana Supreme Court denied writs before filing the instant § 2254 petition.
Under these circumstances, we cannot say that the district court abused its
discretion in holding that Derouselle did not act with the diligence required to
entitle him to equitable tolling. Cf. Howland, 507 F.3d at 846; Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
AFFIRMED.
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