* Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED

February 9, 2004

Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-50007

RAMON SORIANO,

Petitioner-Appellant,

v.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Texas

(02-CV-467)

Before DAVIS, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM: *

Petitioner, Ramon Soriano (Soriano), was convicted by a jury

of aggravated robbery. Soriano’s second federal habeas petition

was dismissed as time barred by the district court. We issued a

Certificate of Appealability (CO A) on the issues of (1) whether

Soriano is entitled to equitable tolling of the Antiterrorism and

Effective Death Penalty Act (AEDPA) period of limitations and (2)

whether Soriano’s allegation of a facially valid, factually-based2 The petitioner’s name is spelled “Sorriano” in all state

court documents and “Soriano” in federal court documents. This discrepancy has no bearing on the outcome of this case.

-2- constitutional claim satisfied the constitutional prong of Slack v.

McDaniel

, 529 U.S. 473 (2000). We conclude that the court did not

abuse its d iscretion in refusing to equitably toll the AEDPA

limitations p eriod and Soriano’s federal habeas petition is

therefore time barred. Because Soriano is procedurally barred from

bringing this federal habeas petition, we need not address the

remaining issue.

I.

In 1995, Ramon Soriano pleaded guilty to two counts of

robbery. Soriano was also convicted by a jury of one count of

aggravated robbery. The aggravated robbery conviction was affirmed

on direct review. S orriano v. State

, No. 08-95-00208-CR (Tex.App.-

El Paso, Sept. 11, 1997). 2 On March 26, 1998, the Texas Court of

Criminal Appeals refused Soriano’s Petition for Discretionary

Review (PDR). S orriano v. State

, No. 0014-98 (Tex.Crim.App. March

26, 1998). Soriano did not file a petition for certiorari to the

United States Supreme Court; therefore, Soriano’s conviction became

final on June 24, 199 8, 90 days after his PDR was refused. Sup.

Ct. R. 13; 28 U.S.C. § 2244(d)(1)(A).

On December 4, 1998, Soriano filed his first state habeas

petition. This petition was denied on May 24, 2000. E x parte

Sorriano , Application No. 45,374-01 (Tex.Crim.App. May 24, 2000).3 Soriano’s conviction became final on June 24, 1998. 163

days passed between the day after his conviction became final and the day he filed his first state habeas petition on December 4, 1998. The limitations period was tolled while Sorriano’s state application was pending. 28 U.S.C. § 2244(d)(2). The period began running again on May 25, 2000, the day after his first state habeas petition was denied. From this date, Soriano had 202 days remaining in the one-year period of limitations. Therefore, Soriano had until December 12, 2000 to file any and all federal habeas petitions.

-3- On July 24, 2000, Soriano filed his first federal habeas petition.

On April 23, 2001, the magistrate judge recommended denying relief.

Three months later on July 27, 2001, 365 days after filing his

federal habe as petition, Soriano filed an Out-of-Time Motion to

Amend his habeas petition and add seven new claims. On January 29,

2002, the federal district court granted Soriano’s motion and

dismissed his p etition without prejudice as a mixed petition

because Soriano had failed to exhaust the seven new claims added by

hi s July 27 Motion to Amend. S orriano v. Johnson

, No. 00-0215

(W.D.Tex. Jan. 29, 2002). Soriano then filed a second state habeas

petition which was denied on September 18, 2002. E x Parte

Sorriano , No. 45,374-02 (Tex.Crim.App. September 18, 2002).

Following the denial of his second state habeas petition,

Soriano filed his second federal habeas petition in September,

2002. The district court concluded that the AEDPA one-year period

of limitation within which Soriano was required to file all federal

habeas petitions had expired on December 12, 2000, 3 and denied this4 28 U.S.C. § 2244(d)(1) provides, in pertinent part: “A 1-

year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court.”

-4- petition as time ba rred. 28 U.S.C. § 2244(d)(1). 4 This court

granted Soriano a Certificate of Appealability (COA) on the issues

of (1) whether Soriano is entitled to equitable tolling of the

AEDPA limitations period and (2) whether Soriano’s allegation of a

facially valid, factually-based constitutional claim satisfied the

constitutional prong of Slack v. McDaniel , 529 U.S. 473 (2000).

II.

Soriano argues that the district court should have equitably

tolled the AEDPA limitations period. The AEDPA limitations period

may be equitably tolled “where strict application of the statute

would be inequitable.” D avis v. Johns on , 158 F.3d 806, 810 (5th

Cir. 1998). However, the decision whether to equitably toll the

AEDPA’s limitations provisi on “is left to the discretion of the

district court, and we review such decisions only for abuse of

discretion.” C ousin v. Lensing

, 310 F.3d 843, 848 (5th Cir. 2002).

A district court should only employ equitable tolling “in rare and

exceptional circumstances.” D avis

, 158 F.3d a t 811. Generally,

eq uitable tolling applies only where “the plaintiff is actively

misled by the defendant

. . . or is prevented in some extraordinary

way from asserting his rights.” C oleman v. Johnson

, 184 F.3d 398,5 We find it important to note that our analysis is limited

to whether equitable tolling is applicable to this case. This question is distinct from that of whether a district court should dismiss a mixed petition in its entirety, or simply those claims that are unexhausted, where it is likely that a second federal petition will be time barred. See, e.g., Nowaczyk v. Warden , 299 F.3d 69, 71 (1st Cir. 2002); Zarvela v. Artuz , 254 F.3d 374, 379- 383 (2d Cir. 2001); Akins v. Kenney , 341 F.3d 681, 686 (8th Cir.
2003); Thompson v. Sec’y for Dep’t of Corrs. , 320 F.3d 1228, 1229-1230 (11th Cir. 2003). COA was only granted on the issue of equitable tolling and, therefore, we lack jurisdiction to decide any other issues. Sonnier v. Johnson , 161 F.3d 941, 946 (5th Cir. 1998).

-5- 403 (5th Cir. 1999). 5

The burden of proving that equitable tolling is justified is

borne by its proponent. P hillips v. Donnelly

, 216 F.3d 508, 511

(5th Cir. 2000). Soriano has yet to offer any explanation as to

why he waited 368 days after he filed his first federal hab eas

petition before filing a Motion to Amend his petition and add seven

new, unexhausted claims. In order for equitable tolling to be

applicable, it is necessary that the petitioner have been

prevented, through no fault of his own, from asserting his claim.

See Coleman

, 184 F.3d at 403; Cousin

, 310 F.3d at 848. Soriano has

not alleged that this delay resulted because he was misled by the

court or the defendant. Nor has Soriano alleged that the

unexhausted claims are based on evidence that could not have been

discovered prior to the expiration of the limitations period. In

fact, other than the section heading claiming his “Entitlement Of

Equitable Tolling,” Soriano’s brief to this court contains-6-

absolutely no argument as to why equitable tolling should apply.

Soriano’s lack of any explanation as to why he filed a Motion

to Amend his timely federal habeas petition to add seven

unexhausted claims left the district court with little choice but

to conclude that the reason lies in his lac k of diligence in

pursuing his claim. Equitable tolling is not available to those

who do not pursue habeas relief diligently. C ousin

, 310 F.3d at

848. For these reasons, we find that the district court did not

abuse its discretion refusing to equitably toll the AEDPA

limitations period.

III.

The second issue in this appeal is whether Soriano’s

allegation of a facially valid, factually-based constitutional

claim satisfied the constitutional prong of Slack v. McDaniel

, 529

U.S. 473 (2000). However, we find it unnecessary to address this

claim. Because we conclude that Soriano is not entitled to

equitable tolling of the AEDPA limitations period, his habeas

petition is therefore time-barred, and this issue is moot.

IV.

For the reasons stated above, we conclude that the district

court did not abuse its discretion in refusing to equitably toll

the AEDPA limitations period. We find that Soriano has not

demonstrated the type of “rare and exceptional circumstances” that

would warra nt equitable tolling. Accordingly, the ruling of the-7-

district court is affirmed.

AFFIRMED