DON BUSH, Magistrate Judge
Petitioner Danny Jester, Jr., an inmate confined in the Texas prison system, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was transferred to the undersigned by consent of the parties pursuant to 28 U.S.C. § 636(c).
Background
The Petitioner is challenging his Delta County conviction for possession or transport of certain chemicals with intent to manufacture a controlled substance, namely methamphetamine. On October 14, 2005, after pleading guilty, the trial court sentenced Petitioner to twenty years of imprisonment. He did not appeal the judgment. On April 19, 2006, Petitioner filed a post-conviction application for a writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order on June 28, 2006.
The present petition for a writ of habeas corpus was filed on February 9, 2007. Petitioner alleges that he is entitled to relief because his conviction was obtained as a result of an illegal search and seizure.
Antiterrorism and Effective Death Penalty Act of 1996
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was signed into law. The law made several changes to the federal habeas corpus statutes, including the addition of a one year statute of limitations. 28 U.S.C. § 2244(d)(1). The AEDPA provides that the one year limitations period shall run from the latest of four possible situations: the date a judgment becomes final by the conclusion of direct review or the expiration of the time for seeking such review; the date an impediment to filing created by the State is removed; the date in which a constitutional right has been initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Id. at § 2244(d)(1)(A)-(D). The AEDPA also provides that 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. Id. at 2244(d)(2).
The Fifth Circuit discussed the approach that should be taken in applying the AEDPA one year statute of limitations in Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998) and Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998).
In the present case, Petitioner is challenging his October 14, 2005 conviction. The appropriate limitations provision is § 2244(d)(1)(A), which states that the statute of limitations started running when the conviction became final. He did not file a notice of appeal, thus the conviction became final thirty days later, on November 13, 2005. Tex. R. App. P. 26.2 (Vernon 2000). See also Rodarte v. State, 840 S.W.2d 781 (Tex.App. — San Antonio 1992), affirmed, 860 S.W.2d 108 (Tex.Crim.App. 1993). Accordingly, the one year limitations period started running at that time and the present petition was due no later than November 13, 2006, in the absence of tolling provisions. It was not filed until February 9, 2007.
The provisions of 28 U.S.C. § 2244(d)(2) provide that the time during which a properly filed application for state post-conviction or other collateral review is pending shall not be counted toward any period of limitation. The Petitioner filed a post-conviction application for a writ of habeas corpus on April 19, 2006, which was denied on June 28, 2006. His state writ was pending for seventy (70) days; thus, the statute of limitations was tolled for seventy days, extending the deadline for filing the present federal petition to January 22, 2007. It was filed on February 9, 2007, eighteen days beyond the deadline. The petition is thus time-barred in the absence of any other tolling provisions.
Petitioner has made no showing that unconstitutional State action prevented him from seeking administrative or state or federal habeas corpus relief in a timely manner, or that he is asserting a newly recognized constitutional right. Neither has he shown that he could not have discovered the factual predicates of his claims through exercise of due diligence until a later time.
Furthermore, Petitioner has not shown any basis upon which the limitations period should be equitably tolled. The Fifth Circuit has held that the district court has the power to equitably toll the limitations period in "extraordinary circumstances." Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir. 1998). In order to qualify for such equitable tolling, the petition must present "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998). In making this determination, it should be noted that the Fifth Circuit has expressly held that proceeding pro se, illiteracy, deafness, lack of legal training, unfamiliarity with the legal process, and claims of actual innocence are insufficient reasons to equitably toll the statute of limitations. Felder v. Johnson, 204 F.3d 168, 173 (5th Cir. 2000).
As a general rule, equitable tolling has historically been limited to situations where the petitioner "has actively pursued his judicial remedies by filing a defective proceeding during the statutory period, or where the [petitioner] has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed.2d 435 (1990). Furthermore, equitable tolling cannot be used to thwart the intent of Congress in enacting the limitations period. See Davis, 158 F.3d at 811 (noting that "rare and exceptional circumstances" are required). At the same time, the Court is aware that dismissal of a first federal habeas petition is a "particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293, 134 L. Ed.2d 440 (1996).
In this case, Petitioner has not shown any valid basis upon which to equitably toll the statute of limitations. Consequently, the petition should be dismissed as time-barred. It is therefore
ORDERED that the petition for a writ of habeas corpus is DISMISSED with prejudice. It is further
ORDERED that all motions by either party not previously ruled on are hereby DENIED.