* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

July 28, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-30803

Summary Calendar

 

WILTON MCGEE,

Petitioner-Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Middle District of Louisiana

(02-CV-850-B)

--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Wilton McGee, Louisiana prisoner #370747,

was convicted of second degree murder by a Louisiana jury on July

26, 1996. The trial court sentenced McGee to life imprisonment at

hard labor without parole, probation, or suspension of sentence.

The Louisiana Court of Appeal affirmed McGee’s conviction and

sentence on April 8, 1998. McGee did not seek review in the

Louisiana Supreme Court until November 10, 1999, well after the

thirty days for seeking a writ from the Louisiana Supreme Court, as

provided in LA. SUP. CT. R. X, ¶ 5(a). McGee concedes that his writ
2

request was filed out-of-time. The Louisiana Supreme Court

summarily denied McGee a supervisory writ on June 23, 2000. In

August 2002, after McGee’s applications for state postconviction

relief were denied, he filed the 28 U.S.C. § 2254 petition that is

the subject of this appeal. 

The district court dismissed McGee’s petition as time-barred

under the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA)

one-year limitations period, set forth in 28 U.S.C. § 2244(d)(1).

A certificate of appealability (COA) was granted on the issue

whether McGee’s conviction became final for limitations purposes

either (a) on the date the time expired for seeking a supervisory

writ in the Louisiana Supreme Court or (b) on the date the

Louisiana Supreme Court actually denied McGee’s apparently untimely

writ application.

The AEDPA established a one-year limitations period for the

filing of a writ of habeas corpus by a person in state custody.

See 28 U.S.C. § 2244(d); Ott v. Johnson, 192 F.3d 510, 512 (5th

Cir. 1999). The limitations period commences on the date the

judgment in question becomes final by the conclusion of direct

review or the expiration of the time for seeking such review.

§ 2244(d)(1)(A).

As noted, the Louisiana Court of Appeal affirmed McGee’s

conviction and sentence on April 8, 1998. McGee had “within thirty

days of the mailing of the notice of the original judgment of the

court of appeal” to make his application to the Louisiana Supreme
3

Court. LA. SUPR. CT. R. X, § 5(a). As McGee allowed the time for

seeking further direct review to expire, the plain language of 28

U.S.C. § 2244(d)(1)(A) establishes that AEDPA’s one-year

limitations period started to run on May 8, 1998, which is “the

expiration of the time for seeking such review.” 28 U.S.C.

§ 2244(d)(1)(A); see also Roberts v. Cockrell, 319 F.3d 690, 694

(5th Cir. 2003) (if defendant stops the appeal process before entry

of judgment by court of last resort, the conviction becomes final

when the time for seeking further direct review in the state court

expires). Therefore, pursuant to 28 U.S.C. § 2244(d)(1)(A), the

limitations period in McGee’s case commenced on May 8, 1998.

The issue is whether McGee’s out-of-time filing of his request

for a supervisory writ had any impact on either the commencement or

the running of the limitations period. McGee relies on O’Sullivan

v. Boerckel, 526 U.S. 838, 845 (1999), and argues that his

conviction became final for limitations purposes on the date that

the Louisiana Supreme Court actually denied his untimely writ

application. McGee’s reliance on O’Sullivan is misplaced. In

O’Sullivan, the Supreme Court concluded that state prisoners must

give state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the state’s

established appellate review process. Id. at 840. The Supreme

Court held in O’Sullivan that the petitioner’s failure to present

three of his federal habeas claims to the Illinois Supreme Court in

a timely fashion resulted in a procedural default of those claims.
4

Id. at 848. O’Sullivan does not specifically address what effect

an out-of-time filing would have on the AEDPA limitations period

and therefore does not provide McGee with authority for the relief

that he seeks. See id. at 840-848.

Our recent analysis in the Salinas v. Dretke, 354 F.3d 425

(5th Cir.), cert. denied, 124 S. Ct. 2099 (2004), demonstrates that

McGee’s conviction became final for the AEDPA’s limitations

purposes on the date that the time expired for seeking a

supervisory writ in the Louisiana Supreme Court, not the date that

the Louisiana Supreme Court denied McGee’s untimely writ

application. The Salinas panel decided that, in Texas, an

out-of-time petition for discretionary review is in the nature of

habeas relief and that the grant of such relief “tolls [the]

AEDPA’s statute of limitations until the date on which the Court of

Criminal Appeals declines to grant further relief, but it does not

require a federal court to restart the running of [the] AEDPA’s

limitations period altogether.” Id. at 430 (footnote omitted).

In Louisiana, as in Texas, leave to file an out-of-time writ

application is obtained through the collateral review process. See

State v. Counterman, 475 So. 2d 336, 338-39 (La. 1985) (the

appropriate procedural vehicle for a defendant to seek the exercise

of his right to appeal, after the time for filing an appeal has

expired, is an application for post conviction relief); State v.

Cage, 637 So. 2d 89, 90 (La. 1994) (transfer to district court of

out-of-time rehearing application filed in Louisiana Supreme Court
5

with instructions to consider rehearing application as an

application for postconviction relief); Williams v. Cain, 217 F.3d

303, 308 (5th Cir. 2000) (emphasizing that Louisiana Supreme Court

Rule X, § 5(a), “sets out no specific exceptions to, or exclusions

from, the [30-day-filing] requirement” and that the rule expressly

“forbids any extension of the thirty-day limit”). Thus, under the

rationale set forth in Salinas, the AEDPA limitations period would

be tolled only while McGee sought and obtained leave to file the

out-of-time writ request. See Salinas, 354 F.3d at 430. In

McGee’s case, however, more than a year elapsed after May 8, 1998

(the triggering date for the AEDPA limitations period) before McGee

filed his out-of-time writ request on November 10, 1999.

Consequently, McGee’s out of-time writ application did not toll the

limitations period. Also, McGee did not have state habeas

applications pending during the limitations period. Thus, tolling

pursuant to 28 U.S.C. § 2244(d)(2) is not at issue. The one-year

limitations period therefore ran untolled and uninterrupted from

May 8, 1998 to May 9, 1999, when it expired. 

For the foregoing reasons, the judgment of the district court

is 

AFFIRMED.