* 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. 05-61135

Summary Calendar

MARCUS DESHAWN HOWARD

Petitioner-Appellant

v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF

CORRECTIONS

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 4:04-CV-96

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Marcus Deshawn Howard, Mississippi inmate # R1192, appeals the

dismissal of his 28 U.S.C. § 2254 petition in which he challenged his conviction

for murder. The district court dismissed Howard’s petition as time-barred under

the Antiterrorism and Effective Death Penalty Act (AEDPA).

Howard argues that he is entitled to statutory and/or equitable tolling

under AEDPA because materials supplied to him by the prison’s inmate legal

United States Court of Appeals

Fifth Circuit

F I L E D

October 4, 2007

Charles R. Fulbruge III

Clerk
No. 05-61135

2

assistance program confused him. This court granted Howard a certificate of

appealability because the record was not clear whether Howard received only

page one of “A Basic Explanation of the Appeals Process,” which arguably could

have led him to believe that he had three years to seek both postconviction and

federal habeas relief.

Howard’s statements in the instant appeal establish that he received a

“corrected packet” in February 2002 and that it set forth a one-year limitations

period for filing the instant § 2254 petition. The prison’s failure to provide

Howard with information relative to AEDPA’s limitations period until February

2002 constituted an impediment to his filing a timely § 2254 petition. See

Egerton v. Cockrell, 334 F.3d 433, 438-39 (5th Cir. 2003). Therefore, he is

entitled to statutory tolling. See id. at 436. The one-year limitations period

began when he received the packet. See 28 U.S.C. § 2244(d)(1)(B). 

Howard does not state and the record does not state what day in February

Howard received the corrected packet. If he is given the benefit of the doubt, he

received the corrected packet on February 28, 2002. Absent statutory tolling, he

had until February 28, 2003, to file the instant petition. See § 2244(d)(1)(A).

Howard’s state habeas petition was pending from October 31, 2002, until April

10, 2003, and therefore tolled the limitation period. He then had until August

9, 2003, to file a timely § 2254 petition. See § 2244(d)(2); Fields v. Johnson, 159

F.3d 914, 916 (5th Cir. 1998). His petition, filed May 20, 2004, was therefore

untimely. 

Howard’s argument that he is entitled to equitable tolling because the

information he received from the Inmate Legal Assistance program confused him

is unavailing. See Cousin v. Lensing, 310 F.3d 843, 848-49 (5th Cir. 2002).

Moreover, Howard did not diligently pursue § 2254 relief given that he waited

more than a year from the date that he asserts he actually determined the

limitations period to file the instant petition. See Coleman v. Johnson, 184 F.3d

398, 403 (5th Cir. 1999). 
No. 05-61135

3

Accordingly, the district’s court dismissal of Howard’s § 2254 petition as

time-barred is AFFIRMED.