                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 9, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No.    03-50007



     RAMON SORIANO,

          Petitioner-Appellant,

          v.

     DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
     JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

          Respondent-Appellee.


          Appeal from the United States District Court
                for the Western District of Texas
                           (02-CV-467)


Before DAVIS, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Petitioner, Ramon Soriano (Soriano), was convicted by a jury

of aggravated robbery.   Soriano’s second federal habeas petition

was dismissed as time barred by the district court.      We issued a

Certificate of Appealability (COA) on the issues of (1) whether

Soriano is entitled to equitable tolling of the Antiterrorism and

Effective Death Penalty Act (AEDPA) period of limitations and (2)

whether Soriano’s allegation of a facially valid, factually-based



     *
      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this opinion should not be published and is not precedent except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.
constitutional claim satisfied the constitutional prong of Slack v.

McDaniel, 529 U.S. 473 (2000).        We conclude that the court did not

abuse its discretion in refusing to equitably toll the AEDPA

limitations    period      and   Soriano’s    federal   habeas     petition     is

therefore time barred. Because Soriano is procedurally barred from

bringing this federal habeas petition, we need not address the

remaining issue.

                                      I.

     In    1995,   Ramon    Soriano   pleaded    guilty    to    two   counts   of

robbery.     Soriano was also convicted by a jury of one count of

aggravated robbery. The aggravated robbery conviction was affirmed

on direct review. Sorriano v. State, No. 08-95-00208-CR (Tex.App.-

El Paso, Sept. 11, 1997).2         On March 26, 1998, the Texas Court of

Criminal Appeals      refused     Soriano’s     Petition   for    Discretionary

Review (PDR).      Sorriano v. State, No. 0014-98 (Tex.Crim.App. March

26, 1998).    Soriano did not file a petition for certiorari to the

United States Supreme Court; therefore, Soriano’s conviction became

final on June 24, 1998, 90 days after his PDR was refused.                  Sup.

Ct. R. 13; 28 U.S.C. § 2244(d)(1)(A).

     On December 4, 1998, Soriano filed his first state habeas

petition.     This petition was denied on May 24, 2000.                 Ex parte

Sorriano, Application No. 45,374-01 (Tex.Crim.App. May 24, 2000).


     2
       The petitioner’s name is spelled “Sorriano” in all state
court documents and “Soriano” in federal court documents. This
discrepancy has no bearing on the outcome of this case.

                                      -2-
On July 24, 2000, Soriano filed his first federal habeas petition.

On April 23, 2001, the magistrate judge recommended denying relief.

Three months later on July 27, 2001, 365 days after filing his

federal habeas petition, Soriano filed an Out-of-Time Motion to

Amend his habeas petition and add seven new claims.          On January 29,

2002, the federal district court granted Soriano’s motion and

dismissed his petition without prejudice as a mixed petition

because Soriano had failed to exhaust the seven new claims added by

his July 27 Motion to Amend.           Sorriano v. Johnson, No. 00-0215

(W.D.Tex. Jan. 29, 2002). Soriano then filed a second state habeas

petition   which   was   denied   on    September   18,   2002.   Ex   Parte

Sorriano, No. 45,374-02 (Tex.Crim.App. September 18, 2002).

     Following the denial of his second state habeas petition,

Soriano filed his second federal habeas petition in September,

2002.    The district court concluded that the AEDPA one-year period

of limitation within which Soriano was required to file all federal

habeas petitions had expired on December 12, 2000,3 and denied this




     3
       Soriano’s conviction became final on June 24, 1998. 163
days passed between the day after his conviction became final and
the day he filed his first state habeas petition on December 4,
1998. The limitations period was tolled while Sorriano’s state
application was pending. 28 U.S.C. § 2244(d)(2). The period
began running again on May 25, 2000, the day after his first
state habeas petition was denied. From this date, Soriano had
202 days remaining in the one-year period of limitations.
Therefore, Soriano had until December 12, 2000 to file any and
all federal habeas petitions.

                                       -3-
petition as time barred.      28 U.S.C. § 2244(d)(1).4   This court

granted Soriano a Certificate of Appealability (COA) on the issues

of (1) whether Soriano is entitled to equitable tolling of the

AEDPA limitations period and (2) whether Soriano’s allegation of a

facially valid, factually-based constitutional claim satisfied the

constitutional prong of Slack v. McDaniel, 529 U.S. 473 (2000).

                                  II.

     Soriano argues that the district court should have equitably

tolled the AEDPA limitations period.    The AEDPA limitations period

may be equitably tolled “where strict application of the statute

would be inequitable.”   Davis v. Johnson, 158 F.3d 806, 810 (5th

Cir. 1998).   However, the decision whether to equitably toll the

AEDPA’s limitations provision “is left to the discretion of the

district court, and we review such decisions only for abuse of

discretion.” Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002).

A district court should only employ equitable tolling “in rare and

exceptional circumstances.”    Davis, 158 F.3d at 811.   Generally,

equitable tolling applies only where “the plaintiff is actively

misled by the defendant . . . or is prevented in some extraordinary

way from asserting his rights.”    Coleman v. Johnson, 184 F.3d 398,




     4
       28 U.S.C. § 2244(d)(1) provides, in pertinent part: “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.”

                                  -4-
403 (5th Cir. 1999).5



     The burden of proving that equitable tolling is justified is

borne by its proponent.        Phillips v. Donnelly, 216 F.3d 508, 511

(5th Cir. 2000).       Soriano has yet to offer any explanation as to

why he waited 368 days after he filed his first federal habeas

petition before filing a Motion to Amend his petition and add seven

new, unexhausted claims.          In order for equitable tolling to be

applicable,     it    is   necessary     that     the    petitioner      have    been

prevented, through no fault of his own, from asserting his claim.

See Coleman, 184 F.3d at 403; Cousin, 310 F.3d at 848.                 Soriano has

not alleged that this delay resulted because he was misled by the

court    or   the    defendant.   Nor     has     Soriano    alleged      that   the

unexhausted claims are based on evidence that could not have been

discovered prior to the expiration of the limitations period.                     In

fact, other than the section heading claiming his “Entitlement Of

Equitable     Tolling,”     Soriano’s     brief     to    this   court     contains


     5
       We find it important to note that our analysis is limited
to whether equitable tolling is applicable to this case. This
question is distinct from that of whether a district court should
dismiss a mixed petition in its entirety, or simply those claims
that are unexhausted, where it is likely that a second federal
petition will be time barred. See, e.g., Nowaczyk v. Warden, 299
F.3d 69, 71 (1st Cir. 2002); Zarvela v. Artuz, 254 F.3d 374, 379-
383 (2d Cir. 2001); Akins v. Kenney, 341 F.3d 681, 686 (8th Cir.
2003); Thompson v. Sec’y for Dep’t of Corrs., 320 F.3d 1228,
1229-1230 (11th Cir. 2003). COA was only granted on the issue of
equitable tolling and, therefore, we lack jurisdiction to decide
any other issues. Sonnier v. Johnson, 161 F.3d 941, 946 (5th
Cir. 1998).

                                        -5-
absolutely no argument as to why equitable tolling should apply.

       Soriano’s lack of any explanation as to why he filed a Motion

to   Amend      his     timely    federal      habeas       petition     to   add   seven

unexhausted claims left the district court with little choice but

to conclude that the reason lies in his lack of diligence in

pursuing his claim.          Equitable tolling is not available to those

who do not pursue habeas relief diligently.                        Cousin, 310 F.3d at

848.     For these reasons, we find that the district court did not

abuse    its     discretion       refusing        to   equitably       toll   the   AEDPA

limitations period.

                                         III.

       The     second     issue    in   this       appeal     is    whether    Soriano’s

allegation of a facially valid, factually-based constitutional

claim satisfied the constitutional prong of Slack v. McDaniel, 529

U.S. 473 (2000).         However, we find it unnecessary to address this

claim.       Because we conclude that Soriano is not entitled to

equitable tolling of the AEDPA limitations period, his habeas

petition is therefore time-barred, and this issue is moot.

                                         IV.

       For the reasons stated above, we conclude that the district

court did not abuse its discretion in refusing to equitably toll

the AEDPA limitations period.                  We find that Soriano has not

demonstrated the type of “rare and exceptional circumstances” that

would warrant equitable tolling.                  Accordingly, the ruling of the



                                            -6-
district court is affirmed.

     AFFIRMED




                              -7-
