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

                                                                            FILED
                                                                        December 15, 2008
                                     No. 07-11206
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




TERRY ANGELO HATCHER,

                                                  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 Northern District of Texas
                                 No. 4:06-CV-817




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Terry Hatcher, Texas prisoner # 1182100, was convicted of aggravated sex-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-11206

ual assault of a child and sentenced to 46 years in prison. He appeals the dis-
missal of his 28 U.S.C. § 2254 application as time-barred.
      Hatcher argues that he is entitled to tolling of the one-year limitations
period under 28 U.S.C. § 2244(d)(1) for filing a § 2254 application because the
combination of two factors establishes rare and exceptional circumstances that
warrant equitable tolling: (1) His trial counsel refused to provide him with a
copy of counsel’s file, and (2) the state habeas court denied his request for an or-
der compelling production of the file or alternatively for a hearing. Hatcher con-
tends that the state habeas court’s action constituted a state-created impediment
to the timely filing of his § 2254 application. Hatcher, who filed his application
on November 17, 2006, does not contest the district court’s determination that,
absent tolling, the one-year limitations period expired on October 2, 2006.
      The limitations period runs from the latest of several dates, including “the
date on which the impediment to filing an application created by State action in
violation of the Constitution or laws of the United States is removed, if the ap-
plicant was prevented from filing by such State action.” § 2244(d)(1)(B). Thus,
under the statute, the impediment must be unconstitutional for tolling to apply.
See Flanagan v. Johnson, 154 F.3d 196, 198-99 (5th Cir. 1998).
      The state habeas court granted Hatcher’s request for an evidentiary hear-
ing with respect to his effort to obtain a copy of his trial counsel’s file. Although
Hatcher complains that the hearing was done by affidavits rather than live testi-
mony, he did not allege that the state habeas court created an “unconstitutional”
impediment that prevented him from timely filing his federal habeas applica-
tion. In the absence of such an allegation, the statutory exception in § 2244(d)-
(1)(B) does not apply. Id. at 199.
      The limitations period may be equitably tolled, but only in rare and excep-
tional circumstances. Felder v. Johnson, 204 F.3d 168, 170-171 (5th Cir. 2000).
Hatcher has not shown that not having possession of his trial counsel’s file pre-
vented him from filing his application, as opposed to proving his claims. See

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                                    No. 07-11206

Flanagan, 154 F.3d at 199 (holding that § 2244(d) “does not convey a statutory
right to an extended delay . . . while a habeas petitioner gathers every possible
scrap of evidence that might, by negative implication, support his claim.”).
      Hatcher was able to file his state habeas application without first obtain-
ing a copy of his trial counsel’s file, and he ultimately, if belatedly, also filed his
§ 2254 application without first obtaining a copy. See id. at 198-99. He has not
shown that lack of possession of the file prevented him from filing his application
on time.
      Hatcher has not carried his burden of establishing rare and exceptional
circumstances for equitable tolling. See Felder, 204 F.3d at 170-71. He has not
established that the district court abused its discretion in denying his request
for tolling. See Larry v. Dretke, 361 F.3d 890, 897 (5th Cir. 2004).
      AFFIRMED.




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