Scales v. Dretke ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 19, 2004
Charles R. Fulbruge III
Clerk
No. 04-10011
Summary Calendar
NOLAN WAYNE SCALES,
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. 3:03-CV-1237-R
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant, Nolan Wayne Scales, Texas prisoner
# 798414, appeals the district court’s dismissal of his 28 U.S.C.
§ 2254 petition challenging his murder conviction as barred by the
one-year statute of limitations in 28 U.S.C. § 2244(d). The
district court granted a certificate of appealability (COA) on the
issue whether the filing of Scales’s federal habeas petition is
subject to equitable tolling. Scales’s conviction became final on
*
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this opinion should not be published and is not precedent except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.
July 31, 2000, the last date for seeking direct review from the
Texas Court of Criminal Appeals. See 28 U.S.C. § 2244(d)(1)(A);
Salinas v. Dretke, 354 F.3d 425, 430 (5th Cir), cert. denied, 124
S. Ct. 2099 (2004). Scales had one year, or until July 31, 2001,
in which to file a federal habeas petition. The limitations period
was tolled from February 21, 2001, the date on which he filed his
state habeas application, until May 9, 2001, the date on which it
was denied. At that time, Scales had 160 days remaining, or until
October 16, 2001, to file a timely federal habeas petition. His
second state habeas application did not toll the limitations period
because it was filed on November 7, 2001, after the expiration of
the limitations period. See Scott v. Johnson, 227 F.3d 260, 263
(5th Cir. 2000).
Scales argues that the limitations period should have been
equitably tolled from May 5, 2003, the date on which his second
state habeas application was denied, until May 27, 2003, the date
on which he received notice of the decision. The limitations
period expired on October 16, 2001, however, before Scales filed
his second state habeas application on November 7, 2001, so the
limitations period was not tolled during the pendency of Scales’s
second state habeas application. See Scott, 227 F.3d at 263.
AFFIRMED.