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this opinion should not be published and is not precedent except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

June 25, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10230

Summary Calendar

DAVID MICHAEL GORDON,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:02-CV-1095

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

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

David Michael Gordon, Texas prisoner # 877573, appeals the

district court’s dismissal of his 28 U.S.C. § 2254 habeas

petition based on the statute of limitations. Gordon was

convicted following a guilty plea to aggravated sexual assault of

a child under fourteen years and sexual assault of a child and

was sentenced to terms of imprisonment of 45 years and 20 years.

We previously vacated the district court’s denial of relief

on the merits and remanded the case to the district court for
No. 06-10230

-2-

further proceedings regarding Gordon’s ineffective assistance of

counsel claims and the district court’s timeliness ruling. On

remand, following an evidentiary hearing, the district court

determined that the petition was time-barred, but granted a

certificate of appealability (COA) on the issue whether the

statute of limitations should be equitably tolled. Gordon argues

that the statute of limitations should be equitably tolled

because the Texas Court of Criminal Appeals failed to give him

official notice when his state habeas application was denied. 

“Equitable tolling applies principally where the plaintiff

is actively misled by the defendant about the cause of action or

is prevented in some extraordinary way from asserting his

rights.” Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001)

(internal quotation marks omitted). Equitable tolling does not

apply if the petitioner does not diligently seek habeas relief. 

Id.

The district court’s decision not to apply equitable tolling

was not an abuse of discretion. Gordon did not file his state

application for over nine months, he did not provide the state

court with his mailing address when he arrived at the Robertson

Unit, and his federal petition was not filed until two months 

after he received notice that his state application was denied. 

Although the State’s delay was a factor to consider in

determining the equitable tolling issue, Gordon’s ultimate

failure to act with due diligence precludes the application of
No. 06-10230

-3-

equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th

Cir. 2000). Thus, the district court did not abuse its

discretion in failing to apply the doctrine of equitable tolling. 

Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). 

Because a ruling on the time-bar issue is dispositive of the

case, further briefing is not required. The judgment of the

district court is AFFIRMED. Gordon’s motion for a COA and motion

to stay the ruling on his COA motion are DENIED as unnecessary.