IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30120 Summary Calendar

ANTHONY JOHNSON,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 98-CV-1097-B -------------------- December 4, 2001 Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Anthony Johnson, Louisiana prisoner # 113118, appeals from the

district court's denial of his

petition

challenging his 1986 murder conviction as time-barred. State

prisoners whose judgments became final prior to the April 24, 1996,

enactment date of the Antiterrorism and Effective Death Penalty Act

("AEDPA"),

(d), are afforded a one-year grace

period to file a timely

petition. See Flanagan v.

Johnson,

(5th Cir. 1998). Johnson argues that a

claim of actual innocence equitably tolls the AEDPA's limitation

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-30120 -2-

period, however, and that he has made a showing of actual

innocence. We conclude that Johnson is not entitled to equitable

tolling.

Johnson's two state habeas applications were denied in 1991

and 1992. He avers that he did not obtain copies of the district

attorney's files showing that the prosecutor withheld exculpatory

information until 1994. However, Johnson did not file his

petition until March 24, 1998, four years after

receiving this information and eleven months after the AEDPA's

grace period lapsed. "Equitable tolling should only be applied if

the applicant diligently pursues § 2254 relief." Melancon v.

Kaylo,

(5th Cir. 2001); see Scott v. Johnson,

(5th Cir. 2000). We conclude that Johnson did not

diligently pursue relief under

, and he is not

entitled to equitable tolling.

Johnson argues that for the AEDPA's tolling purposes his

petition "relates back" to an earlier petition filed in 1987, which

was dismissed without prejudice, and that failure to review his

petition would violate the Suspension Clause. These issues were

not included in this court's grant of a certificate of

appealability, and we do not consider them.

AFFIRMED.