Filed: Sep. 27, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-11293 Summary Calendar GARY HAMPTON, Petitioner-Appellant, versus JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CV-1726-A - September 24, 2002 Before JONES, STEWART, and DENNIS, Circuit Judges. PER CURIAM:* Gary Hampton (“Hampton”), Texas state prisoner #776384, appeals the
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-11293 Summary Calendar GARY HAMPTON, Petitioner-Appellant, versus JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CV-1726-A - September 24, 2002 Before JONES, STEWART, and DENNIS, Circuit Judges. PER CURIAM:* Gary Hampton (“Hampton”), Texas state prisoner #776384, appeals the ..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11293
Summary Calendar
GARY HAMPTON,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CV-1726-A
--------------------
September 24, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Gary Hampton (“Hampton”), Texas state prisoner #776384,
appeals the district court’s dismissal of his 28 U.S.C. § 2254
petition challenging his conviction for possession of
methamphetamine as time-barred. Hampton argues that the statute of
limitations period should be equitably tolled because due to a
malfunction of the prison’s postage scale, his state habeas
application was returned for insufficient postage.
*
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that this opinion should not be published and is not precedent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.
No. 01-11293
-2-
This court reviews a district court’s decision whether to
apply equitable tolling for abuse of discretion. See Fisher v.
Johnson,
174 F.3d 710, 713 (5th Cir. 1999). The limitations period
may be equitably tolled, but only in “rare and exceptional
circumstances.” See Felder v. Johnson,
204 F.3d 168, 170-171 (5th
Cir.), cert. denied,
531 U.S. 1035 (2000). When determining
whether the statute of limitations period should be equitably
tolled the prisoner carries the burden of proof. See Phillips v.
Donnelly,
216 F.3d 508, 511 (5th Cir. 2000), modified by Phillips
v. Donnelly,
223 F.3d 797 (5th Cir. 2000). Hampton has failed to
establish that he is entitled to equitable tolling because Hampton
has not shown that his state habeas application was returned on
January 13, 2000, for insufficient postage or that he re-mailed the
application on January 14, 2000, which would support his contention
that he re-mailed his state habeas application prior to the
expiration of the limitations period.
Accordingly, the district court’s dismissal of Hampton’s
28 U.S.C. § 2254 petition is AFFIRMED.
Hampton’s motion to supplement the record on appeal is
DENIED.