                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                                 No. 99-41332



                                 RICHARD FORD,

                                                       Petitioner-Appellant,


                                    VERSUS


              GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
             OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                                        Respondent-Appellee.




             Appeal from the United States District Court
                   For the Eastern District of Texas
                                 (6:99-CV-323)
                                 June 11, 2001
Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and KENT*, District
Judge.

DeMOSS, Circuit Judge:**

       Richard     Ford,   a   prisoner    in   the   custody   of   the   Texas

Department    of    Criminal    Justice,    appeals    the   district   court’s

dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred


  *
    District Judge of the Southern District of Texas, sitting by
designation.
  **
    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opinion should not be published and is not precedent except under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.
under the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”)

statute of limitations.      We affirm.

                                        I.

      More than seventeen years ago, a jury convicted Ford of

aggravated rape and he was sentenced to 30 years in prison.                  Ford’s

conviction was affirmed on direct appeal. On August 19, 1994, Ford

was released on mandatory supervision.            Approximately seven months

later, in March 1995, Ford was charged with violating the terms of

his   release   by   committing    an       assault   by   threat   on   a   state

caseworker.     On June 16, 1995, after a hearing on the matter,

Ford’s mandatory supervision was revoked and the state court issued

a warrant for his arrest.         In September 1997, Ford filed a state

habeas action.

      The state trial court held an evidentiary hearing, eventually

holding that Ford was denied the right to counsel at the revocation

hearing, and that Ford was denied his due process rights because

there was no evidence to support the revocation. In February 1999,

the Texas Court of Criminal Appeals reversed, denying Ford’s

request for a writ of habeas corpus without a written opinion.

      Ford filed this federal habeas corpus action four months

later, in June 1999.      The case was referred to a Magistrate Judge,

who upon consideration of the Respondent’s motion, recommended that

the case be dismissed as time-barred by the AEDPA’s one-year

limitations     period.    See    28    U.S.C.    §   2244(d).      Ford     filed



                                        2
objections,   raising    his     argument      that   the   AEDPA’s    one-year

limitations   period    should    be   tolled    because    he   is   factually

innocent of the assault by threat charge made the basis of his

mandatory supervision revocation.            The district court conducted a

de novo review, eventually adopting the Magistrate Judge’s report

and dismissing the case as time-barred.           The district court denied

Ford’s request for a certificate of appealability (“COA”), and Ford

requested a COA from this Court.            We granted a COA limited to the

narrow issue of whether there is any extra-statutory “miscarriage

of justice” exception to the limitations period set forth in §

2244(d).

                                       II.

     Ford filed this § 2254 action after the April 24, 1996

effective date of the AEDPA.       His claim is therefore controlled by

the provisions of that statute, which provides in relevant part:

           (d)(1) A 1-year period of limitation shall apply to
           an application for a writ of habeas corpus by a
           person in custody pursuant to the judgment of a
           State court. The limitation period shall run from
           the latest of–

           (A) the date on which the judgment became final by
           the conclusion of direct review or the expiration
           of the time for seeking such review;

           (B) 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 applicant was prevented from filing
           by such State action;

           (C) the date on which the constitutional right
           asserted was initially recognized by the Supreme


                                        3
            Court, if the right has been newly recognized by
            the Supreme Court and made retroactively applicable
            to cases on collateral review; or

            (D) the date on which the factual predicate of the
            claim   or  claims   presented  could   have  been
            discovered through the exercise of due diligence.

            (2) The time during which a properly filed
            application for State post-conviction or other
            collateral review with respect to the pertinent
            judgment or claim is pending shall not be counted
            toward any period of limitation under this
            subsection.

28 U.S.C. § 2244(d).

     Applying these statutory provisions in the absence of any

equitable or statutory tolling, Ford’s claims are clearly time-

barred.    Ford’s mandatory supervision revocation became final some

time in 1995, well before the April 24, 1996, effective date of the

AEDPA.    Ford therefore had one year after that effective date to

file his federal habeas corpus action. See, e.g., United States v.

Flores, 135 F.3d 1000, 1006 (5th Cir. 1998).        While that time

period would ordinarily be extended by the pendency of a state

habeas corpus action, see 28 U.S.C. § 2244(d)(2), Ford did not file

his state habeas corpus action until September 1997, several months

after the deadline for filing federal suit expired.    Thus, Ford’s

federal habeas petition was to be filed on or before April 24,

1997.     His petition was filed on June 9, 1999, some twenty-six

months later.

     In his appeal, Ford argues that the limitations period should

be “equitably tolled” because he is “actually innocent” of the

                                  4
assault charge made the basis of the revocation proceeding.                           He

argues   that     applying      the    statute     of     limitations    to    preclude

consideration of his habeas claims, which seek relief from the

unconstitutional revocation proceeding, would amount to a “manifest

miscarriage       of   justice.”           Ford    then    relies    upon      precedent

recognizing that a state prisoner’s procedural default or abuse of

the writ may be excused upon a showing of cause and prejudice or

upon a showing that failure to consider the defaulted claims would

result in     a    miscarriage        of   justice.        Ford   acknowledges      that

§ 2244(d) itself does not include any language setting forth an

extension or exception to the statutory limitations period in the

case of actual innocence, but argues that continued punishment of

an innocent individual is inherently unconstitutional.                         For that

reason, Ford concludes, the statute is unconstitutional unless such

an actual innocence or miscarriage of justice exception is implied.

     In his argument, Ford relies upon equitable tolling and

maintains that the Constitution requires that there be an extra-

statutory exception to the limitations period for claims of actual

innocence.        Ford   also    argues      for   invocation       of   the   manifest

miscarriage of justice exception, a principle which was derived and

has been applied almost exclusively to excuse a state prisoner’s

default of state procedural rules or abuse of the writ.

     With respect to Ford’s suggestion that the limitations period

should have been equitably tolled based upon his actual innocence,

we note that the equitable tolling doctrine typically applies where

                                             5
there exists some impediment to filing a timely action which is

beyond the petitioner’s control.         With respect to whether a claim

of actual innocence would justify the application of equitable

tolling, we have explicitly held that a claim of actual innocence,

standing   alone,   is   not   the   type   of   “rare   and    exceptional”

circumstance which would justify equitable tolling “given that many

prisoners maintain that they are innocent.” Felder v. Johnson, 204

F.3d 168, 171 (5th Cir.), cert. denied, 121 S. Ct. 622 (2000); see

also Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (equitable

tolling only appropriate in “rare and exceptional circumstances”).

Furthermore, to the extent that equitable tolling might otherwise

be available for claims of actual innocence, tolling would not be

appropriate in circumstances such as those present in this case

where the petitioner was not diligent in pursuing his claims.            See

Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618-

19 (3d Cir. 1998) (equitable tolling applies only where prisoner

has diligently pursued his claim, but has in some “extraordinary

way” been prevented from asserting his rights).

     Turning to the constitutional challenge raised by Ford, we

note that there are a significant number of cases analyzing whether

the limitations period found in the AEDPA violates the Suspension

Clause of the Constitution.          While this precise issue is not

expressly raised by Ford, an analysis of the relevant precedent

informs our analysis of the issues raised by Ford.             The suspension


                                     6
clause provides:

            The privilege of the Writ of Habeas Corpus shall
            not be suspended, unless when in Cases of Rebellion
            or Invasion the public Safety may require it.

U.S. Const. art. I, § 9, cl. 2.           Of those cases addressing the

narrowly    framed   issue    of   whether    the    limitations     provision

constitutes an impermissible suspension of the writ when the

petitioner can demonstrate actual innocence, some decisions lean

in favor of finding such a constitutional violation.               See, e.g.,

Neuendorf v. Graves, 110 F. Supp.2d (N.D. Iowa 2000); Alexander v.

Keane, 991 F. Supp. 329, 336-41 (S.D.N.Y. 1998).            However, none of

those cases have afforded relief by considering an otherwise time-

barred claim on that basis.

     We    have   suggested    that   application      of   the    statute    of

limitations in the context of an actual innocence claim does not

violate the Suspension Clause.        Molo v. Johnson, 207 F.3d 773 (5th

Cir. 2000), involved a petitioner’s claim of actual innocence as

well as a Suspension Clause challenge.         In Molo, we concluded that

the AEDPA’s one-year limitations provision “does not violate the

Suspension Clause unless it renders the habeas remedy inadequate or

ineffective to test the legality of detention.”             Id. at 775.      Such

a showing is not made unless the petitioner demonstrates that there

is some reason he was unable to file the habeas petition prior to

the expiration of the limitations period.            See id.

     Our   holding   in   Molo     comports   with    the   well-established


                                      7
principles that "the power to award the writ by any of the courts

of the United States, must be given by written law,” and that

“judgments about the proper scope of the writ are normally for

Congress to make.”        Turner v. Johnson, 177 F.3d 390 (5th Cir.)

(internal citations and quotations omitted), cert. denied, 120

S. Ct. 504 (1999); see also Felker v. Turpin, 116 S. Ct. 2333

(1996) (“[J]udgments       about    the      proper    scope    of   the   writ   are

normally for Congress to make.” (internal quotations omitted)).

Our holding in Molo likewise comports with the statutory language

of the AEDPA, which sets up the one-year limitations period, then

provides that the trigger date for that limitations period will be

extended if there is a state-imposed impediment to earlier filing

or the petitioner could not have discovered the factual predicate

for his claim any earlier.         See 28 U.S.C. § 2244(d)(1)(B) & (D).

     In   this    case,   Ford     has       not    alleged    any   state-imposed

impediment   to   filing.        Neither      has    he   expressly    raised     any

allegation that he could not have known the factual predicate of

either his substantive claim or the actual innocence exception. As

a factual matter, both the absence of counsel and his factual

innocence with respect to the threatening behavior would have been

known to Ford at the time of his revocation hearing.                 Though during

the state habeas proceedings the State stipulated that the actions

for which Ford was charged did not constitute assault by threat,

that stipulation merely eased Ford’s actual innocence burden rather


                                         8
than providing any new facts previously unknown or unknowable to

Ford.

     We therefore conclude that Ford knew he was factually innocent

of the assault allegations made the basis of the revocation in

1995, when his mandatory supervision was revoked.              Certainly he

knew that he was not afforded counsel at the hearing, his primary

substantive claim, at that time.          Ford had the time period prior to

the effective date of the AEDPA as well as a one-year reasonable

time period after the effective date of the AEDPA in which to file

his habeas claim on those grounds.           Additionally, Ford could have

further extended the limitations period by filing a state habeas

action within that time frame.        The fact that he did not do either

eliminates any suspension clause argument.

     Turning to Ford’s statutory interpretation argument, we note

his contention that the presence of actual innocence exceptions in

other provisions of the AEDPA counsels in favor of inferring the

applicability of such an exception to the one-year limitations

period of § 2244(d).       The Respondent suggests that these same

provisions counsel in favor of the opposite conclusion, that

Congress   did   not   intend   for   such    an   exception   to   apply   to

§ 2244(d).

     The Respondent notes that Congress chose to retain and codify

in the AEDPA the judicially created actual innocence/miscarriage of

justice exception for only some procedural bars.           For example, 28

U.S.C. § 2244(b)(2) sets out the general rule that second or

                                      9
successive habeas petitions must be dismissed, but also sets out an

exception to that rule when the second or successive petition:(a)

is premised upon a retroactive new rule of constitutional law,

§ 2244(b)(2)(A), or (b) the claim is premised upon a factual

predicate that could not have been discovered earlier, and the

petitioner can make a showing of actual innocence, § 2244(b)(2)(B).

Similarly, 28 U.S.C. § 2254(e)(2) sets out the general rule that a

petitioner who has not developed the factual basis for his claim in

state habeas proceedings is not entitled to an evidentiary hearing

in federal court, but also sets out an exception to that rule when

(a) the claim is premised upon a factual predicate that could not

have been discovered earlier or a new rule of constitutional law,

§ 2254(e)(2)(A), and (b) the petitioner makes a showing of actual

innocence, § 2254(e)(2)(B).3   The Respondent argues that “[i]t is


  3
   Section 2244(b)(2)(B)(ii) permits an exception when:

      the facts underlying the claim, if proven and viewed in light
      of the evidence as a whole, would be sufficient ro establish
      by clear and convincing evidence that, but for constitutional
      error, no reasonable factfinder would have found the applicant
      guilty of the underlying offense.

Section 2254(e)(2)(B) permits an exception when:

      the facts underlying the claim would be sufficient to
      establish by clear and convicting evidence that but for the
      constitutional error, no reasonable factfinder would have
      found the applicant guilty of the underlying offense.

We note that § 2255 contains a similar provision for second or
successive habeas motions filed by federal prisoners.      This
language is generally viewed as a circumscribed codification of
judicially created actual innocence or miscarriage of justice

                                 10
a   fundamental       tenet    of   statutory         construction    that     Congress

intended to exclude language included in one section of a statute,

but omitted from another section,” quoting Ott v. Johnson, 192 F.3d

510, 513 (5th Cir. 1999), cert. denied, 120 S. Ct. 1834 (2000).

Thus, the Respondent maintains that it is patently apparent that

Congress did not intend to erect any actual innocence exception to

§ 2244(d)'s limitations period.

      Ford replies that Congress’ inclusion of an actual innocence

exception in such provisions as the successive writ provision and

the   evidentiary      hearing      provision     supports      his   argument       that

Congress had such exceptions in mind when drafting the AEDPA as

well as his position that judges must be afforded the judicial

discretion to permit an actual innocence exception to a procedural

bar like the limitations period.

      Neither    of    these    arguments        is    precisely     accurate.        The

Respondent    uses     §   2244(b)(2)      and    §     2254(e)(2)    to     argue   that

§ 2244(d) (the limitations provision at issue in this case) is more

restrictive     (in    that    it   does   not        permit   an   actual    innocence

exception) than those statutes.            The Respondent’s argument ignores

the fact that both § 2244(b)(2) and § 2254(e)(2) require something

more than a showing of actual innocence.                  Under § 2244(b)(2), the

petitioner must show          both that the factual predicate of the claim

could not have been discovered earlier and actual innocence to fall


principles.

                                           11
within the exception. Under § 2254(e)(2), the petitioner must show

that the claim is premised upon a new rule of constitutional law or

a factual predicate that could not have been discovered earlier and

actual innocence.   Neither § 2244(b)(2) not § 2254(e)(2) set out

freestanding actual innocence exceptions.    Under § 2244(d), the

limitations period may be extended inter alia on the basis of a

retroactive new rule of constitutional law or a factual predicate

that could not have been discovered earlier.        See 28 U.S.C.

§ 2244(d)(1).    Section 2244(d) dispenses with the additional

requirement of showing actual innocence.      Thus, § 2244(d) is

actually less restrictive, and the Respondent’s argument that the

exceptions in § 2244(b)(2) and § 2254(e)(2) can be used to support

an argument that none was intended in § 2244(d) is not persuasive.

     In our view, the best evidence that Congress did not intend

such an exception is that it simply is not there.   See Williams v.

Taylor, 120 S. Ct. 1479, 1489 (2000) (stating that Congress “raised

the bar” with respect to prisoners who did not diligently develop

the factual basis for their claims in state court by substituting

the provision of § 2254(e)(2) for the more lenient principles

developed in Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992), and by

“eliminating a freestanding `miscarriage of justice’ exception”).

                               III.

     Having conducted an exhaustive review of the record of this

case, and having considered the parties’ respective briefing on the


                                12
issues presented in this appeal, we find no error in the district

court’s dismissal of Ford’s § 2254 petition as time-barred.              While

we express no opinion about the applicability of an extra-statutory

actual   innocence/miscarriage    of       justice     exception    to    the

limitations   period   found     in    §     2244(d)     under     different

circumstances, we conclude that based upon the unique facts of this

case, where, in the absence of any impediment beyond his control

and with full awareness of the factual basis of his claims, Ford

was simply not diligent in pursuing his claims.          Ford waited until

long after the § 2244(d)(1) limitations period expired on April 24,

1997, filing his petition twenty-six months later, on June 9, 1999.

In these circumstances, we are convinced that no relief from the

limitations period was contemplated by Congress. Accordingly, Ford

is not entitled to any relief from the limitations period rendering

his petition time-barred and dismissal was appropriate.

               AFFIRMED.




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