Gray v. LeBlanc ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30022
Summary Calendar
WENDELL V. GRAY,
Petitioner-Appellant,
versus
JAMES M. LEBLANC, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CV-1331-J
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November 21, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Wendell V. Gray, Louisiana prisoner # 300228, was granted a
certificate of appealability (COA) on the issue whether the
district court erred in dismissing his 28 U.S.C. § 2254 petition
as barred by the one-year statute of limitations in 28 U.S.C.
§ 2244(d). Gray argues that the limitations period should be
equitably tolled during the time that he diligently sought a copy
of the transcript of the postconviction evidentiary hearing which
was allegedly necessary to enable him to file a writ application
to the Louisiana court of appeal. Gray has not shown that the
*
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that this opinion should not be published and is not precedent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. 01-30022
-2-
transcript of the postconviction evidentiary hearing was
necessary to enable him to file a writ application to the
Louisiana court of appeal. The limitations period was tolled
from the time that Gray filed his state habeas application on
October 24, 1997, to the date that the state trial court denied
the application on September 4, 1998. See § 2244(d)(2). Prior
to October 24, 1997, 203 days of the one-year limitations period
had elapsed. The limitations period was not tolled from
September 4, 1998, to March 19, 1999, during the period in which
Gray did not have a writ application to the court of appeal
pending. See Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir.
2001). Gray’s motion to correct an illegal sentence filed on
February 11, 1999, did not toll the limitations period under
§ 2244(d)(2). During this period, 195 days of the limitations
period elapsed. Because Rule 4-3 of the Louisiana Uniform Rules
of the Courts of Appeal allowed the court of appeal to consider
Gray’s untimely writ application and the court of appeal did
consider Gray’s writ application on the merits, Gray’s writ
application to the Louisiana court of appeal was properly filed.
See id. at 405. However, as of March 19, 1999, the time in which
the limitations period was running exceeded 365 days. Therefore,
Gray’s federal habeas petition was barred by the one-year statute
of limitations. Further, Gray is not entitled to equitable
tolling because he waited approximately six months from the state
trial court’s denial of his habeas application to file a writ
application to the Louisiana court of appeal and because he
waited an additional two months from the Louisiana Supreme
No. 01-30022
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Court’s denial of his writ application to file his federal habeas
petition. See Melancon, 259 F.3d at 407-08; Coleman v. Johnson,
184 F.3d 398, 403 (5th Cir. 1999), cert. denied, 120 S. Ct. 1564(2000).
AFFIRMED.