Opinion
No. 06-60817, Summary Calendar.
August 28, 2007.
William Cullen Stennett, for Petitioner-Appellant.
Jerrolyn M. Owens, Office of the Attorney General for the State of Mississippi, Jackson, MS, for Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Mississippi, USDC No. 3:05-CV-35.
Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
John Ray Kidd, Mississippi prisoner # R9542, appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred. Kidd is challenging his convictions for sexual battery and two counts of rape. Kidd asserts that the limitation period should be tolled because of the egregious conduct of the State and because of his actual innocence.
The district court granted a certificate of appealability (COA) on the issue whether Kidd's newly discovered evidence clearly demonstrated a violation of Kidd's constitutional rights and whether it would be a manifest miscarriage of justice to let the conviction and sentence stand. Id. at 253. The district court also granted COA on the issue whether egregious errors and misconduct had occurred that warranted the tolling of the limitation period. Id. at 253.
Kidd acknowledges that the did not file his federal petition within one year of his discovery of new evidence. Kidd has not demonstrated that he acted with due diligence in filing his petition, and he has not made a showing of actual innocence. See Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000).
The dismissal of the petition is AFFIRMED.