                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 20, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-41189
                        Conference Calendar


JIMMY LYNN KESTLER,

                                    Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 5:01-CV-71
                       --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jimmy Lynn Kestler, Texas prisoner no. 888630, appeals the

dismissal, as untimely, of his 28 U.S.C. § 2254 federal habeas

application.

     Kestler argues that his conviction did not become final

until 60 days later than calculated by the district court because

he filed a motion for a new trial in state court.      Kestler’s

new-trial motion did not extend the appeal period or postpone the


     *
        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that this opinion should not be published and is not precedent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. 02-41189
                                 -2-

finality of his conviction because the motion was filed more than

30 days after his sentence was imposed.     See TEX. R. APP. P. 21.4,

26.2(a)(2); see also Roberts v. Cockrell, 319 F.3d 690, 693-94

(5th Cir. 2003) (looking to state law to determine when direct

appeal no longer available).

     Kestler argues that his state habeas application should have

been deemed filed when he mailed it rather than when it was

actually filed in the state-court record.     The “mailbox rule”

Kestler seeks to apply does not apply to the filing date of a

state habeas application.   Coleman v. Johnson, 184 F.3d 398, 402

(5th Cir. 1999).   Moreover, the delay between the mailing and the

filing of the state habeas application is immaterial under an

equitable-tolling analysis because the additional suspension of

the limitation period would still leave his federal application

untimely.   See id. (prescribing equitable-tolling analysis).      In

addition, the mailbox rule as applicable to the filing of his

federal application would not render the application timely even

were we to accept Kestler’s assertions as to the date of mailing.

     The judgment of the district court is AFFIRMED.
