Edwards v. Dretke , 116 F. App'x 470 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 6, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-11347
Summary Calendar
LANCE GERHARD EDWARDS,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-
Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-2673-M
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Before WIENER, BENAVIDES AND STEWART, Circuit Judges.
PER CURIAM:*
In May 1998, Lance Gerhard Edwards, now Texas prisoner #831407, was convicted by guilty
plea of burglary of a habitation with the intent to commit theft and sentenced to 30 years’
imprisonment. He appeals from the district court’s dismissal of his 28 U.S.C. § 2254 application as
time-barred. The district court granted a certificate of appealability as to: (1) whether the initial filing
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
of Edwards’s state habeas corpus application constituted a “properly filed” application for purposes
of the statutory tolling provision under 28 U.S.C. § 2244(d)(2); and (2) whether Edwards was
entitled to equitable tolling. This court reviews de novo the district court’s denial of a § 2254
application based upon procedural grounds. Grillette v. Warden, Winn Corr. Ctr., 372 F.3d 765, 769
(5th Cir. 2004).
The initial filing of Edwards’s state habeas corpus application did not constitute a “properly
filed” application for purposes of 28 U.S.C. § 2244(d)(2) because the Texas Court of Criminal
Appeals determined that the application failed to comply with TEX. R. APP. P. 73.2. See Artuz v.
Bennett, 531 U.S. 4, 8 (2000); Larry v. Dretke, 361 F.3d 890, 895 (5th Cir. 2004). Moreover,
Edwards has failed to allege circumstances warranting equitable tolling from the time he initially filed
his state habeas corpus application to the time that application was returned to him for
noncompliance. See Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000); Coleman v. Johnson,
184 F.3d 398, 402 (5th Cir. 1999). Accordingly, because the district court properly dismissed
Edwards’s instant application as barred by limitations, the district court’s judgment is AFFIRMED.
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