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

                                                 FILED
                                                                         November 10, 2009

                                     No. 07-30889                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



FREDDIE LEBLANC,

                                                   Petitioner - Appellant
v.

JEFFERY TRAVIS, Warden, Rayburn Correctional Center,

                                                   Respondent - Appellee




               Appeal from the United States District Court for the
                          Eastern District of Louisiana
                            USDC No. 2:07-CV-2977


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner Freddie LeBlanc seeks review of the Louisiana Supreme Court's
opinion reinstating his manslaughter conviction, to which he pleaded guilty in
2002. The federal district court held that LeBlanc's petition was untimely but
granted a Certificate of Appealability on whether the statute of limitations
should be tolled for Petitioner's ineffective assistance of counsel claim. For the
reasons below, we affirm.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-30889

      In its Order Clarifying Prior Order Granting Certificate of Appealability,
the federal district court held that "Petitioner has made a substantial showing
of the denial of his constitutional right to effective assistance of counsel." The
district court also held that despite his petition being untimely, LeBlanc has
provided new evidence that may toll the deadline for federal habeas relief. See
28 U.S.C. § 2244(d)(1)(D).
      LeBlanc points to only one piece of evidence which "could not have been
discovered through the exercise of due diligence" and thus potentially toll the
statute of limitations. See § 2244(d)(1)(D). This is a motion in an unrelated
proceeding where LeBlanc's former attorney - acting as his own counsel -
requests the state of Louisiana to determine his own sanity. This self-interested
and semi-farcical "Application for Appointment of a Sanity Commission" is in
response to an indictment against LeBlanc's attorney for extortion. The attorney
states two grounds in his Application for questioning his sanity: (1) people he
knows allegedly stated that he was mentally ill, and (2) "he would have to be
insane to single out" the alleged victim when there were more vulnerable
targets. There is no evidence that this Application was ever granted by the court
in those proceedings, nor does LeBlanc point to evidence substantiating the
claims in the Application itself. Consequently, we do not find this Application
to be evidence of the attorney's mental instability. Even if the Application were
taken as evidence of this attorney's mental instability at the time of its filing, it
is not probative of the attorney's mental state at the time of LeBlanc's
representation two years prior to the Application. Accordingly, the filing does
not provide evidence of a factual predicate which can toll the statute of
limitations pursuant to § 2244(d)(1)(D).
      LeBlanc's remaining evidence of ineffective assistance of counsel consists
of his testimony at the state court evidentiary hearing. This testimony recounts
his attorney's behavior to which LeBlanc was a witness during his trial.

                                         2
                                   No. 07-30889

Assuming this evidence demonstrates ineffective assistance of counsel, LeBlanc
presents no reason why he could not have reasonably presented this evidence
through the exercise of due diligence within the one-year period of limitation.
Accordingly, this evidence, too, does not provide evidence of a factual predicate
which can toll the statute of limitations pursuant to § 2244(d)(1)(D).
      LeBlanc's conviction became final on November 25, 2002, and his
application for post-conviction relief came more than one year later.           The
decision of the Louisiana Supreme Court cannot be considered a new charge that
began a new finality date.     And LeBlanc's ineffective counsel contention is
directed at counsel's conduct before the trial court. Accordingly, LeBlanc's claim
of ineffective assistance of counsel is time-barred. See § 2244(d)(1) (providing
one-year period of limitation to all federal habeas claims of final state
judgments). Without a reason to toll the federal statute of limitations, we cannot
look to the merits of LeBlanc's ineffective assistance of counsel claim. See
§ 2244(d)(1)(A)-(D) (providing exclusive list of statutory grounds for tolling one-
year period). Furthermore, LeBlanc's claims of actual innocence do not present
"rare and extraordinary circumstances" for which we may consider an equitable
tolling of the statute of limitations. See Felder v. Johnson, 204 F.3d 168, 171
(5th Cir. 2000). Finally, because LeBlanc's claims are barred by the federal
statute of limitations, he has failed to show that the Louisiana State Supreme
Court's decision reinstating his conviction is "contrary to . . . clearly established
Federal law." See § 2254(d)(1).
      AFFIRMED.




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