Prater v. Hooper

Case: 22-30569 Document: 00516716179 Page: 1 Date Filed: 04/18/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-30569
Summary Calendar FILED
____________ April 18, 2023
Lyle W. Cayce
Harry Prater, Clerk
Petitioner—Appellant,
versus
Tim Hooper, Warden, Louisiana State Penitentiary,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-576
______________________________
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam: *
Harry Prater, Louisiana prisoner # 625261, appeals the denial of his 28
U.S.C. § 2254 application challenging his convictions and sentences for two
counts of second degree murder. He concedes that his application was not
timely filed under 28 U.S.C. § 2244(d)(1)(A) but argues that the district
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-30569 Document: 00516716179 Page: 2 Date Filed: 04/18/2023
No. 22-30569
court erred by denying his request for equitable tolling. The district court
granted a Certificate of Appealability.
We review the denial of equitable tolling for an abuse of discretion.
See Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009). “[A] petitioner
is entitled to equitable tolling only if he shows (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing.” Id. at 649 (internal quotation marks
and citation omitted). “A petitioner’s failure to satisfy the statute of
limitations must result from external factors beyond his control; delays of the
petitioner’s own making do not qualify.” Hardy, 577 F.3d at 598 (internal
quotation marks, brackets, and citation omitted).
Although Prater filed his § 2254 application only 16 days after
receiving his state habeas denial, his failure to file his state habeas application
for almost a full year after his conviction became final for purposes of
§ 2244(d)(1)(A) strongly weighs against equitable tolling. See Jackson v.
Davis, 933 F.3d 408, 411 (5th Cir. 2019). While a lengthy delay between the
denial of state habeas relief and a prisoner’s receipt of that denial may
constitute an extraordinary circumstance that warrants equitable tolling, see
Jackson, 933 F.3d at 411, Prater has not shown that the two-day delay qualifies
in this case.
The judgment of the district court is AFFIRMED.
2