           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 15, 2009
                                     No. 08-40484
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

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.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40484

      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 C RIMINAL
J USTICE P LAN FOR THE S OUTHERN D ISTRICT OF T EXAS, § 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



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                                  No. 08-40484

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.




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