   Case: 11-30154       Document: 00511835422         Page: 1     Date Filed: 04/25/2012




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

                                                                            FILED
                                                                           April 25, 2012
                                     No. 11-30154
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




SYLVESTER ROLLINS,

                                                  Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

                                                  Respondent-Appellee.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                No. 2:10-CV-1994




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       Sylvester Rollins, now Louisiana prisoner # 76405, was convicted of
second-degree murder and sentenced to life imprisonment. This court granted

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-30154

him leave to file a successive 28 U.S.C. § 2254 application in district court. In
re Rollins, 381 F. App’x 365, 369 (5th Cir. 2010). After the district court dis-
missed that application, we granted Rollins a certificate of appealability (“COA”)
regarding his claim of ineffective assistance of counsel. We advised that we
might consider on appeal whether the § 2254 application is time-barred, proce-
durally barred, or subject to dismissal under 28 U.S.C. § 2244(b)(2)(B).
      Rollins argues that defense counsel rendered ineffective assistance by fail-
ing to locate and call certain witnesses; that the absence of those witnesses from
trial violated his rights to due process and equal protection; and that he was
entitled to equitable tolling of the limitations period because he diligently sought
the witnesses and pursued his claims. He waived his claim regarding due-
process and equal-protection rights by failing to raise it in his COA motion, and
that claim is outside the scope of the COA. See Simmons v. Epps, 654 F.3d 526,
535 (5th Cir. 2011), petition for cert. filed (Dec. 27, 2011) (No. 11-8085).
      This court may consider the limitations issue now and may affirm on that
ground if it is supported by the record. See Scott v. Johnson, 227 F.3d 260, 262-
63 (5th Cir. 2000). A person in state custody has one year in which to file a
timely application for federal habeas corpus relief. 28 U.S.C. § 2244(d)(1). That
period began on “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.”
§ 2244(d)(1)(D). Even if we assume that limitations were tolled pursuant to
§ 2244(d)(2) until September 26, 2008, when Rollins’s last state post-conviction
application was denied by the Louisiana Supreme Court, Rollins did not file his
§ 2254 application within one year of that denial. His motion seeking this court’s
authorization to file a successive § 2254 application did not toll limitations or
satisfy the filing requirement. See Duncan v. Walker, 533 U.S. 167, 181-82
(2001); Fierro v. Cockrell, 294 F.3d 674, 680-81 (5th Cir. 2002). Moreover, Rol-
lins has not shown that he is entitled to equitable tolling. Howland v. Quarter-
man, 507 F.3d 840, 845 (5th Cir. 2007); Fisher v. Johnson, 174 F.3d 710, 715 (5th

                                         2
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                                No. 11-30154

Cir. 1999).
      Because the dismissal can be affirmed on limitations grounds, we need not
consider the ineffective-assistance claim. The judgment is AFFIRMED.




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