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. 08-10327

Summary Calendar

LARRY HUDSON, JR.,

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:07-CV-81

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Larry Hudson, Jr., Texas prisoner # 1218900, appeals the district court’s

dismissal, as time barred, of his 28 U.S.C. § 2254 petition, which he filed to

challenge his jury trial conviction of aggravated assault with a deadly weapon.

Hudson’s conviction became final on December 27, 2005. On December 14, 2006,

Hudson delivered his state habeas application to prison authorities for mailing.

United States Court of Appeals

Fifth Circuit

F I L E D

September 1, 2009

Charles R. Fulbruge III

Clerk
No. 08-10327

2

The application was filed in state court on December 28, 2006, and was denied

on May 9, 2007. Hudson filed his § 2254 petition on May 19, 2007.

Hudson argues that he was entitled to equitable tolling of the limitations

period on account of the fourteen-day delay between the date he submitted his

state application for post-conviction relief to prison authorities for mailing and

the date that the state habeas application was filed in court. He asserts that he

would have filed his state habeas application earlier had he known that state

authorities would “sit on” the application. Hudson contends that his delay in

filing for state habeas relief was due to his attempts to obtain transcripts.

The one-year limitations period of 28 U.S.C. § 2244(d) is subject to

equitable tolling “in rare and exceptional circumstances.” Davis v. Johnson, 158

F.3d 806, 811 (5th Cir. 1998). The doctrine “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.” Coleman v.

Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (internal quotation marks omitted).

Equitable tolling “will not be granted if the applicant failed to diligently pursue

his rights.” Larry v. Dretke, 361 F.3d 890, 897 (5th Cir. 2004). The applicant

bears the burden of establishing that equitable tolling is warranted. Phillips v.

Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on reh’g, 223 F.3d 797 (5th Cir.

2000). 

Hudson’s demonstration of a two-week delay between the submission of

his state habeas application for mailing and its filing in state court does not

establish that he was actively misled by state authorities or that he was

prevented in an extraordinary way from pursuing his rights. See Coleman, 184

F.3d at 402. Moreover, given that approximately eleven and one-half months of

the limitations period elapsed prior to Hudson’s delivering his state habeas

application for mailing, Hudson fails to establish that he diligently pursued his

rights. See Larry, 361 at 897. In view of the foregoing, the district court did not
No. 08-10327

3

abuse its discretion in denying equitable tolling. See Ott v. Johnson, 192 F.3d

510, 513 (5th Cir. 1999). 

AFFIRMED.