JEFF KAPLAN, Magistrate Judge
Petitioner Terrance D. Chambers, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed on limitations grounds.
I.
Petitioner was sentenced to 38 years confinement upon pleading guilty to aggravated robbery and attempted murder. No appeal was taken. Instead, petitioner filed an application for state post-conviction relief. The application was denied without written order. Ex pane Chambers, No. 39, 434-01 (Tex.Crim.App. Nov. 18, 1998). Petitioner then filed this action in federal court.
II.
In four grounds for relief, petitioner complains that the evidence was insufficient to support his conviction for aggravated robbery and attempted murder.
By order dated January 23, 2004, the court sua sponte questioned whether this case was time-barred and invited petitioner to address the limitations issue in a written reply. Petitioner filed a reply on February 18, 2004. The court now determines that this case should be dismissed on limitations grounds.
Petitioner filed a pleading entitled "Petition for Directed Verdict for Acquittal" wherein he attempts to explain why this case is not barred by the AEDPA statute of limitations. The court will construe this pleading a reply.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214(1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1494 (1999).
The statute provides that the limitations 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 direct 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 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.
28 U.S.C. § 2244(d)(1).
B.
Petitioner was sentenced to 38 years in prison for aggravated robbery and attempted murder. Judgment was entered on July 8, 1996 and no appeal was taken. Therefore, petitioner's conviction became final 30 days thereafter on August 8, 1996. See TEX. R. APP. 26.2. Petitioner filed an application for state post-conviction relief on May 19, 1998. The application was denied on November 18, 1998. Petitioner filed this action in federal court on December 1, 2003.
The statute of limitations started to run on August 8, 1996 when petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1)(A). Yet petitioner waited more than 21 months to seek post-conviction relief in state or federal court. No explanation has been offered to explain this delay. Instead, petitioner argues only that he is actually innocent. This does not constitute a "rare and exceptional" circumstance sufficient to toll the statute of limitations. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000); Mason v. Cockrell, 2003 WL21488226 at *2 (N.D. Tex. Apr. 23, 2003). See also Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) ("Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights."). The court concludes that this case is time-barred and should be dismissed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus is barred by limitations and should be dismissed with prejudice.