Burleson v. Johnson

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50454
Summary Calendar
JOE FRED BURLESON,
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 Western District of Texas
USDC No. SA-99-CV-519-EP
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December 19, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Joe Fred Burleson, Texas inmate #709759, proceeding pro
se, and in forma pauperis, appeals the district court’s denial of
his 28 U.S.C. § 2254 petition. In Scott v. Johnson, 227 F.3d 260,
262-63 (5th Cir. 2000), we sanctioned the sua sponte application of
the 28 U.S.C. § 2244(d) one-year statute of limitations provided
that the State had not intentionally waived the limitations defense
and provided that the petitioner had notice and a reasonable
opportunity to respond to the proposed application of the statute
of limitations. Respondent asserted the limitations defense in the

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No. 00-50454
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district court, and Burleson had at least two opportunities to
argue against application of the 28 U.S.C. § 2244(d) statute of
limitations.
The record indicates that Burleson submitted his 28
U.S.C. § 2254 petition more than fifteen months after the
limitations period expired. Burleson’s state habeas application,
which was filed after the one-year limitations period expired, did
not toll the period. The limitations period also was not tolled by
statute while Burleson’s prior, federal habeas petition was
pending. See Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir. 1999)
(holding that the 28 U.S.C. § 2244(d) limitations period is not
tolled while a prior federal habeas petition is pending).
Burleson provided no argument in favor of the application
of equitable tolling in his case. “Equitable tolling applies
principally where the plaintiff is actively misled by the defendant
about the cause of action or is prevented in some extraordinary way
from asserting his rights.” Grooms, 208 F.3d at 489-90 (citation
and internal quotations omitted). The record discloses no grounds
for the application of equitable tolling. Accordingly, Burleson’s
28 U.S.C. § 2254 petition is barred by the statute of limitations
in 28 U.S.C. § 2244(d). The district court’s judgment is VACATED
and the case is REMANDED for entry of judgment in accordance with
this opinion.
VACATED and REMANDED.

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