# Brown v. Quarterman

> Court of Appeals for the Fifth Circuit · October 13, 2006 · 202 F. App'x 700

URL: https://www.frixlaw.com/law-library/cases/46264

## Case

- **Full name:** Richard William BROWN, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 13, 2006
- **Citations:** 202 F. App'x 700
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Smith, Wiener, Owen
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

--------------------
Appeal from the United States District Court
for the Western District of Texas
No. 3:03-CV-530-DB
--------------------

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opinion should not be published and is not precedent except under the limited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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/46264. Public record. Not legal advice.