The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 13, 2006
Charles R. Fulbruge III
No. 04-50820 Clerk
Summary Calendar
RICHARD WILLIAM BROWN,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
No. 3:03-CV-530-DB
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Richard Brown, a Texas prisoner, was convicted of indecency
with a child and sentenced to serve ten years in prison. Brown
filed a 28 U.S.C. § 2254 habeas corpus petition, which the district
court dismissed as untimely. This court granted a certificate of
appealability (“COA”) on the issue whether the delay in notifica-
*
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opinion should not be published and is not precedent except under the limited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.
tion of the denial of Brown’s state habeas application merits
equitable tolling.
Brown contends that he is actually innocent. We decline to
consider this claim, because he has not received a COA on it. See
28 U.S.C. § 2253(c)(1). Brown also argues that he is entitled to
equitable tolling based on the delay in notification of the denial
of his state habeas application and because he diligently pursued
relief.
Brown has not shown that he diligently pursued postconviction
relief, see Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.
2000); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999), or
that he was prevented from timely filing his § 2254 petition on ac-
count of exceptional circumstances that were out of his control or
because he was affirmatively misled, see Felder v. Johnson, 204
F.3d 168, 170-71 (5th Cir. 2000); Davis v. Johnson, 158 F.3d 806,
811 (5th Cir. 1998). Consequently, he has not shown that the dis-
trict court abused its discretion in determining that he was not
entitled to equitable tolling. See Larry v. Dretke, 361 F.3d 890,
897 (5th Cir. 2004). The judgment is AFFIRMED.