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. 08-40484

Summary Calendar

LELAND D BOOTHE

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 Southern District of Texas

USDC No. 2:06-CV-221

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Leland D. Boothe, Texas prisoner # 766955, proceeding pro se and in forma

pauperis, appeals the district court order finding him ineligible for equitable

tolling due to mental incompetence and dismissing his federal habeas petition

as time-barred. He also moves for appointment of counsel on appeal and

contends the district court erred by denying his motion for appellate counsel.

United States Court of Appeals

Fifth Circuit

F I L E D

April 15, 2009

Charles R. Fulbruge III

Clerk
No. 08-40484

2

On 11 October 1996, Boothe pleaded guilty to first-degree murder and was

sentenced to 50 years of imprisonment. He did not file an appeal. 

Boothe’s September 2005 state habeas petition was denied in March 2006.

On 14 April 2006, Boothe filed a 28 U.S.C. § 2254 application, challenging his

conviction and contending the application was not time-barred because he had

been mentally incompetent for nine years following his conviction. 

The State moved for summary judgment, maintaining that Booth was

competent to pursue his legal remedies, at a minimum, in 2003. Counsel was

appointed to represent Boothe for discovery and an evidentiary hearing. The

district court found Boothe was able to file a habeas petition in 2003, concluded

Boothe had failed to show his entitlement to equitable tolling, and dismissed his

§ 2254 application as time-barred. The court granted Boothe a certificate of

appealability regarding the equitable-tolling issue.

Boothe’s motion for appointment of appellate counsel is denied. Boothe

was appointed counsel in the district court pursuant to Rules 6(a) and 8(c) of the

Rules Governing Section 2254 Cases. Boothe contends 18 U.S.C. § 3006A(c)

requires this appointment to continue during the pendency of his appeal. Boothe

cites no authority holding the duration provision of § 3006A(c) applicable to an

appointment under Rules 6(a) and 8(c). Persuasive authority suggests it is not.

See Miranda v. United States, 455 F.2d 402, 403-05 (2d Cir. 1972) (28 U.S.C.

§ 2255 case). 

In any event, because the court orders appointing Boothe counsel limited

the appointment to conducting discovery, briefing the equitable-tolling claim,

and representing Boothe at the evidentiary hearing, the appointment of counsel

was terminated by court order upon completion of those tasks. See CRIMINAL

JUSTICE PLAN FOR THE SOUTHERN DISTRICT OF TEXAS, § VII(E). Nor do “the

interests of justice” require appointment of appellate counsel in this case. See

Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985). (His motion for an
No. 08-40484

3

expedited ruling on his motion for appointment of appellate counsel is denied as

moot.)

Boothe has also failed to demonstrate the district court abused its

discretion by denying his motion for appointment of appellate counsel. See

United States v. Nichols, 30 F.3d 35, 36 (5th Cir. 1994) (28 U.S.C. § 2255

proceeding).

Boothe contends his mental incompetency during his incarceration at the

Jester IV unit prevented him from pursuing his legal rights, thereby warranting

equitable tolling. He contends the district court erred in crediting the testimony

of biased witnesses called by the respondent and by downplaying the testimony

by Boothe’s expert witness.

We review the denial of equitable tolling for abuse of discretion and the

factual findings underlying such a decision for clear error. Howland v.

Quarterman, 507 F.3d 840, 843 (5th Cir. 2007). Boothe provides nothing in his

brief to support his contention that the district court erred in its credibility

determination. Accordingly, Boothe has failed to demonstrate clear error

regarding this issue. See Bower v. Quarterman, 497 F.3d 459, 466 (5th Cir.

2007). 

In the light of that credible testimony, Boothe failed to meet his burden of

showing his mental condition prevented him from pursuing his legal rights

during 2003. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on

reh’g, 223 F.3d 797 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 715-16 (5th

Cir. 1999). Accordingly, because the district court did not abuse its discretion

by refusing to invoke equitable tolling, the district court’s judgment dismissing

Boothe’s § 2254 application as barred by limitations is affirmed.

MOTIONS DENIED; JUDGMENT AFFIRMED.