Kirby Tate v. Jerry Parker

Case: 10-60547 Document: 00511585860 Page: 1 Date Filed: 08/29/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 29, 2011
No. 10-60547
Summary Calendar Lyle W. Cayce
Clerk
KIRBY TATE,
Petitioner-Appellant
v.
WARDEN JERRY PARKER,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:06-CV-99
Before KING, BENAVIDES and ELROD, Circuit Judges.
PER CURIAM:*
Kirby Tate, Mississippi prisoner # 23450, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition as time-barred. Tate argues that
although his petition was untimely on its face, newly discovered evidence
establishing his actual innocence triggers the statutory limitations found in 28
U.S.C. § 2244(d)(1)(D) or entitles him to equitable tolling. Additionally, Tate
asserts that he is entitled to statutory tolling pursuant to § 2244(d)(1)(B)
because state-created impediments prevented him from timely filing his petition.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-60547
This court reviews the district court’s denial of a habeas petition on
procedural grounds de novo. Butler v. Cain, 533 F.3d 314, 316 (5th Cir. 2008).
The district court concluded that the only truly new evidence included two
affidavits from former State witness Gerald Warren recanting his testimony
against Tate and a transcript of the digitally recorded interview. Although Tate
states that the district court erred, he provides no further factual or legal
authority to support this conclusion. See Koch v. Puckett, 907 F.2d 524, 530 (5th
Cir. 1990) (stating that conclusional allegations fail to establish a valid claim).
Also, Tate does not address the district court’s findings that the new evidence
provides no factual predicate for his pre-existing eight claims, and that Tate has
not exhausted the remaining ninth claim of actual innocence in state court.
Accordingly, Tate has waived this issue. See Hughes v. Johnson, 191 F.3d 607,
613 (5th Cir. 1999).
Tate is not entitled to equitable tolling because he fails to show that some
“extraordinary circumstance stood in his way and prevented timely filing.”
Mathis v. Thaler, 616 F.3d 461, 474-75 (5th Cir. 2010). The alleged
extraordinary circumstances endured by Tate, such as ignorance of the law, lack
of knowledge of filing deadlines, a claim of actual innocence, temporary denial
of access to research materials or the law library, and inadequacies in the prison
law library, are not sufficient to warrant equitable tolling. See Felder v.
Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Scott v. Johnson, 227 F.3d 260,
263 & n.3 (5th Cir. 2000). Moreover, none of these circumstances would have
prevented Tate from filing a timely petition had his lawyer not miscalculated the
correct date that the limitations period would expire. Such a miscalculation is
“a garden variety claim of excusable neglect” that does not warrant equitable
tolling. Holland v. Florida, 130 S. Ct. 2549, 2564 (2010). Therefore, Tate cannot
demonstrate that the district court abused its discretion in concluding that he
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No. 10-60547
was not entitled to equitable tolling.1 See Larry v. Dretke, 361 F.3d 890, 897 (5th
Cir. 2004).
Finally, Tate does not provide sufficient facts to show that (1) he was
prevented from filing a petition (2) by State action (3) in violation of the
Constitution or federal law. See Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir.
2003). Instead, the record indicates that Tate’s attorney failed to file a timely
petition simply because she miscalculated the limitations deadline. Accordingly,
Tate has not shown that the district court erred in concluding that the facts did
not warrant statutory tolling. See Krause v. Thaler, 637 F.3d 558, 561 (5th Cir.
2011) (“Rather, he must also show that the lack of adequate legal materials
actually prevented him from timely filing his habeas petition.”).
The judgment of the district court is AFFIRMED. Tate’s motion to file his
record excerpts under seal is GRANTED, IN PART, to seal the individual
affidavits included in the record excerpts. Tate’s motion to file record excerpts
in excess of 40 pages is likewise GRANTED.
1
Tate also argues that actual innocence warrants equitable tolling. We have held that
claims of actual innocence do not “justify equitable tolling of the limitations period.” Cousin
v. Lensing, 310 F.3d 843 (5th Cir. 2002). See also U.S. v. Riggs, 314 F.3d 796, 800 n.9 (5th Cir.
2002).
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