                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 25, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 02-41686
                         Summary Calendar



DONALD STROMILE,

                                    Petitioner-Appellant,

versus

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

                                    Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                          (G-00-CV-594)
                      --------------------

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant Donald Stromile, Texas prisoner # 796587,

appeals the district court’s denial of his 28 U.S.C. § 2254 claim

that the prosecutor’s closing argument expressing a personal belief

of Stromile’s guilt violated his rights under the Due Process

Clause of the Constitution.   This is the same issue on which the

district court granted a certificate of appealability (COA) after

ruling that Stromile’s petition was not time-barred under 28 U.S.C.

§ 2244(d)(1). We have subsequently rejected this basis for denying

     *
        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this opinion should not be published and is not precedent except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.
Cockrell’s time-bar argument.    See Roberts v. Cockrell, 319 F.3d

690, 694-95 (5th Cir. 2003).    A review of the record reveals that

Stromile’s petition is indeed time-barred, as the limitations

period was not tolled by his state habeas application, filed after

expiration of the period, or by his previous habeas petition, which

he voluntarily dismissed.   See Grooms v. Johnson, 208 F.3d 488,

489-90 (5th Cir. 1999); 28 U.S.C. § 2244(d).      Denial of habeas

relief may be —— and is —— affirmed on this alternate basis.    See

Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th

Cir. 1981).   We deny as moot Stromile’s motion for appointment of

counsel.

AFFIRMED; MOTION DENIED.




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