           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        December 20, 2007

                                     No. 06-10130                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


GLENN WAYNE KELLY

                                                  Petitioner - Appellant
v.

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. 3:05-CV-1015


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Glenn Wayne Kelly, Texas prisoner # 1115953, appeals from the dismissal
of his 28 U.S.C. § 2254 petition as time-barred. This court previously granted
Kelly a certificate of appealability on the issue of whether the district court
properly dismissed his claims concerning the adjudication of his guilt and
sentencing following a violation of his probation. We now affirm.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                     No. 06-10130

      Kelly pleaded guilty to aggravated assault in 2000 and was placed on 10
years of deferred adjudication probation. Kelly violated his probation, and in
July 2002 the trial court adjudicated his guilt and sentenced him to 12 years in
prison. On July 8, 2003, the Texas Fifth District Court of Appeals dismissed
Kelly’s direct appeal. Because Kelly did not seek a rehearing or file a petition
for discretionary review in the Texas Court of Criminal Appeals, his adjudication
of guilt became final 30 days later on August 7, 2003. See Caldwell v. Dretke,
429 F.3d 521, 530 & n.22 (5th Cir. 2005).
      Kelly filed a state habeas application on September 18, 2003. At that time,
the Texas Fifth District Court of Appeals had not yet issued its mandate in the
direct appeal, which it eventually issued on October 2, 2003. On October 29,
2003, the Texas Court of Criminal Appeals dismissed the habeas application in
an order stating “direct appeal pending.”
      Kelly filed a subsequent state habeas application on April 16, 2004, which
the Texas Court of Criminal Appeals denied on January 12, 2005. Kelly did not
file the instant § 2254 petition until May 6, 2005. For purposes of this appeal,
the only question is whether Kelly’s September 2003 state habeas application
was properly filed so as to toll the federal limitations period under 28 U.S.C.
§ 2244(d)(2). If the September habeas application was not properly filed, the
district court correctly dismissed the federal petition as time-barred.1
      We review the district court’s dismissal of a habeas petition on procedural
grounds de novo. Larry v. Dretke, 361 F.3d 890, 893 (5th Cir. 2004).
      A state prisoner seeking federal habeas relief generally has one year from
the date that his conviction becomes final either by the conclusion of direct
review or the expiration of the time for seeking such review to file his § 2254
petition. 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled, however, for


      1
        From August 7, 2003, until April 16, 2004, was 253 days and from January 12, 2005,
until May 6, 2005, was 114 days. The total was 367 days, two days too long.

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the time during which a “properly filed” state habeas application challenging the
same conviction is pending. § 2244(d)(2).
      “[T]o determine whether an application is properly filed, we look to
procedural rules governing the court’s jurisdiction to consider the application,
not rules governing whether it can consider any particular claim.” Larry, 361
F.3d at 893. A state habeas petition filed in a court that lacks jurisdiction is not
properly filed. Id. In Texas, the Court of Criminal Appeals lacks jurisdiction to
consider a habeas application until the judgment from which relief is sought
becomes final. Id. at 894 (citing Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.
Crim. App. 2000)). The judgment becomes final only when the state court issues
its mandate. Johnson, 12 S.W.3d at 473.
      In the instant case, because Kelly filed his September 2003 habeas
application before the Fifth District Court of Appeals issued its mandate, the
Texas Court of Criminal Appeals lacked jurisdiction to consider the application,
and it was not properly filed. See Larry, 361 F.3d at 894. Although the state
appellate court issued its mandate before the Court of Criminal Appeals’
dismissal, this timing is of no moment because state law requires that the
judgment be final before the prisoner files the state habeas application. See id.
at 894–95 (citing TEX. CRIM. PROC. CODE art. 11.07 § 3(a)).
      Kelly argues that the Fifth District Court of Appeals erred by issuing its
mandate later than the time prescribed by TEX. R. APP. P. 18.1 and 68.2. He
essentially contends that because the state appellate court should have already
issued its mandate under state appellate rules when he filed his state habeas
application, the application was properly filed. Regardless of what the state
appellate court should have done on direct appeal, it is clear that until the Fifth
District Court of Appeals issued its mandate the Texas Court of Criminal
Appeals lacked jurisdiction to consider Kelly’s habeas application. See Larry,



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361 F.3d at 894–95.           This was an absolute bar to filing.                 Id. at 894.
Consequently, Kelly’s application was not “properly filed.”2
       The state appellate court’s late issuance of its mandate conceivably could
support an argument for equitable tolling, but we need not decide whether the
issuance of the mandate in this case presented a “rare and exceptional
circumstance[]” warranting tolling. See Davis v. Johnson, 158 F.3d 806, 811 (5th
Cir. 1998). To the extent Kelly’s brief may be liberally construed even to raise
an equitable tolling argument, he is not entitled to such relief because the record
shows that Kelly did not diligently pursue habeas relief. After the Court of
Criminal Appeals dismissed Kelly’s habeas application in October 2003, Kelly
waited almost six months before filing a proper state habeas application in April
2004. After the state court denied his properly filed application, Kelly waited an
additional four months before seeking federal habeas relief. Kelly did not act
with the diligence and alacrity necessary for equitable tolling. See Melancon v.
Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) (holding that state prisoner who waited
more than four months after denial of his state writ to file his federal habeas
petition was not entitled to equitable tolling); see also Fisher v. Johnson, 174
F.3d 710, 715 (5th Cir. 1999) (“‘Equity is not intended for those who sleep on
their rights.’” (citation omitted)).
       With the benefit of liberal construction, Kelly also argues for the first time
in his reply brief that the state appellate court’s late mandate constituted a
state-created impediment to filing his federal petition, which should have tolled
the limitations period under § 2244(d)(1)(B). This court does not consider issues
raised for the first time in a reply brief. Wallace v. County of Comal, 400 F.3d
284, 292 (5th Cir. 2005).


       2
           Kelly also suggests that his conviction did not become final for purposes of
§ 2244(d)(1)(A) until the state appellate court issued its mandate. This contention is foreclosed
by circuit precedent. Roberts v. Cockrell, 319 F.3d 690, 694–95 (5th Cir. 2003).

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            No. 06-10130

AFFIRMED.




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