* 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.

1 United States Court of Appeals

Fifth Circuit



## FILED

January 15, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 03-20613

Summary Calendar

_________________________

TROY RICHARDSON,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

_____________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

No. H-02-CV-1404

_____________________________________________________

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM: *

Petitioner Troy Richardson (“Richardson”), Texas Prisoner # 78534, was convicted by a jury

in Texas state court of aggravated robbery, and sentenced to 35 years in prison. He filed a habeas

petition under 28 U.S.C. § 2254 in the Southern District of Texas. The district court dismissed it as1 Richardson’s petition was untimely by four days.

2 unt imely. 1 Richardson now moves for a Certificate of Appealability (“COA”).

Richardson argues that: (1) the one-year limitations pe rio d fo r filing his 28 U.S.C. § 2254

petition should have been tolled from the time that he deposit ed each of his two state habeas

applications into the prison mailing system because the federal prison mailbox rule applies to his state

habeas filings; and (2) he is entitled to equitable tolling of the one-year statute of limitations period

for the days between the dismissal or denial of his state habeas applications and his actual receipt of

notice of those rulings.

To obtain a COA, a petitioner must make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2) (2000). When a district court has dismissed a habeas

petition on procedural grounds without reaching the merits of the petitioner’s claims, “a COA should

issue when the prisoner shows, at least, that jurists o f reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists of reason would find

it debatable whether the district court was correct in its procedural ruling.” S lack v. McDaniel

, 529

U.S. 473, 484 (2000).

Richardson has not shown that it is debatable whether the district court’s determination was

correct. First, the prison mailbox rule does not apply to the filing date of a state habeas application.

Coleman v. Johnson

, 184 F.3d 398, 402 (5 t h Cir. 1999). Second, the state’s delays of ten and

thirteen days in transmitting the notices of the court’s actions on Richardson’s state habeas

applicati o ns were not sufficiently “rare and exceptional” such that equitable tolling is justified.

Phillips v. Donnelly , 216 F.3d 508, 511 (5th Cir. 2000) (holding that a four-month delay is3

exceptional); see also Fisher v. Johnson

, 174 F.3d 710, 714 (5th Cir. 1999) (concluding that a delay

of “several months” is exceptional).

Accordingly, Richardson’s motion for COA is DENIED.