     Case: 16-10724      Document: 00514449136         Page: 1    Date Filed: 04/27/2018




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

                                                                                 FILED
                                    No. 16-10724                             April 27, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
YONY RENEA DIAZ,

                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-4104


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Petitioner Yony Renea Diaz, Texas inmate # 01314510, was convicted by
a jury of murder and sentenced to life imprisonment. He filed a state habeas
application that was pending in the state trial court for over three years and
before the Texas Court of Criminal Appeals for an additional month before it
was dismissed as non-compliant with the filing rules set forth in Texas Rule of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       Case: 16-10724   Document: 00514449136    Page: 2   Date Filed: 04/27/2018


                                  No. 16-10724

Appellate Procedure 73.1. Over eight months after that dismissal, Diaz filed a
28 U.S.C. § 2254 petition, which the district court dismissed with prejudice as
time barred. We granted a COA as to the district court’s decision not to apply
equitable tolling.
        The one-year limitations period governing federal habeas petitions,
28 U.S.C. § 2244(d), is subject to equitable tolling in “rare and exceptional
circumstances.”      Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009)
(internal quotation marks and citations omitted). “[A] petitioner is entitled to
equitable tolling only if he shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal
quotation marks and citation omitted).
        We may affirm the district court’s dismissal of Diaz’s § 2254 petition on
any ground supported by the record. See Palacios v. Stephens, 723 F.3d 600,
604 (5th Cir. 2013).       Without deciding whether this case presents an
extraordinary circumstance, we are persuaded by the respondent’s argument
that Diaz did not pursue his rights diligently after his state habeas application
was dismissed. See Holland, 560 U.S. at 649. The unexplained eight-month
delay in the filing of his § 2254 petition is on par with other unexplained delays
that we have held to be insufficient to demonstrate the diligence required for
the application of equitable tolling. See Palacios, 723 F.3d at 606 (citing
Koumjian v. Thaler, 484 F. App’x 966, 969-70 (5th Cir. 2012); Coleman v.
Johnson, 184 F.3d 398, 403 (5th Cir. 1999), abrogated on other grounds by
Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013)). Accordingly, we
affirm the district court’s judgment on that basis. See Palacios, 723 F.3d at
604.
        AFFIRMED.



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