*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.

1259 F.3d 401 (5th Cir. 2001)

2217 F.3d 303 (5th Cir. 2000)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-30460

Summary Calendar

 

DALE GAUDET,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State

Penitentiary,

Respondent-Appellee.

__________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 00-CV-2704-F

__________________________________________

January 18, 2002

Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Dale Gaudet, Louisiana prisoner #325242, was granted a certificate of

appealability by this court on the issue whether, in light of Melancon v. Kaylo1 and

Williams v. Cain,

2

 the district court should have applied equitable tolling. The trial
328 U.S.C. § 2244(d)(1)(A) and (d)(2); Emerson v. Johnson, 243 F.3d 931, 932 (5th Cir.

2001). 

2

court found that Gaudet’s 28 U.S.C. § 2254 application was time-barred under the

Antiterrorism and Effective Death Penalty Act (AEDPA).

Gaudet contends that the AEDPA limitations period was tolled while his first

writ application to the state appellate court was pending because it was filed by the

return date set by the trial court. He maintains that the AEDPA limitations period

should be equitably tolled from the time his application for rehearing in his first writ

proceeding was denied on May 25, 1999, until the time the state supreme court

denied his writ application on November 17, 2000. He submits that he should not

be penalized for the time spent seeking a new writ, in his first state writ proceeding,

because the state appellate court actively misled him into believing that his remedy

after its denial of rehearing was to file a “new application.” He contends that the

AEDPA limitations period should be tolled between the denial of his application for

rehearing and the filing of his new state writ application because, during that time,

his second writ application was pending. He further insists that the district court

erred in finding that his new writ application to the appellate court in his first writ

proceeding was filed on November 4, 1999. Finally, he maintains that equitable

tolling of the AEDPA limitations period is warranted because he did not delay in

filing his federal habeas application. 

Gaudet’s first state postconviction application, filed on April 24, 1997, tolled

the federal habeas limitations period for one day.3 That application ceased to be

pending on August 28, 1998, when Gaudet failed to file timely an application for
4LA. SUP. CT. RULE X, § 5(a); Williams v. Cain, 217 F.3d 303, 309 (5th Cir. 2000). 

5

Id.; LA. UNIFORM R. CT. APP. 2-18.7; Y.F.B. v. R.D.R., 787 So. 2d 276 (La. 2001). 

6Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). 

3

supervisory writs with the Louisiana Supreme Court from the August 28, 1998, writ

denial.4 Gaudet’s application for rehearing did not toll the AEDPA limitations

period.5 Upon the passage of one day after August 28, 1998, the date the appellate

court denied the first writ application, and March 26, 1999, the date the second writ

application was filed, Gaudet’s 28 U.S.C. § 2254 application filed on August 28,

2000 was untimely.

The record is manifest that Gaudet has not shown that he is entitled to

equitable tolling during the time in which his application for rehearing was pending.6

His motion for leave to file a supplemental brief is DENIED. The judgment

appealed is AFFIRMED.