                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 16, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40551
                          Summary Calendar


LARRY BROOKS,

                                     Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                     Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:04-CV-324
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Larry Brooks, Texas prisoner # 1012460, was convicted by a

jury of robbery and sentenced to 80 years in prison.      He appeals

the district court’s dismissal of his 28 U.S.C. § 2254 petition

as time-barred by the Antiterrorism and Effective Death Penalty

Act (AEDPA).    AEDPA provides that a habeas petition must be filed

within one year of “the date on which the judgment became final

by the conclusion of direct review or the expiration of the time




     *
       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this opinion should not be published and is not precedent except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. 05-40551
                                 -2-

for seeking such review.”   28 U.S.C. § 2244(d)(1)(A) (2000);

Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004).

     Brooks moves for a supplemental certificate of appealability

(COA) on the question of whether he should be entitled to the

benefits of the mailbox rule in the filing of his state

postconviction application for relief.     However, he

insufficiently briefed this issue and it is therefore waived.

Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).     The motion

for COA is DENIED.

     Brooks asserts that he is entitled to equitable tolling for

the seven days between the denial of his state postconviction

application by the Texas Court of Criminal Appeals and his

receipt of notice of that denial.   The district court’s decision

with respect to equitable tolling is reviewed for abuse of

discretion.   Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.

1999).   Equitable tolling is available in “rare and exceptional

circumstances.”   Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.

1998).   It principally applies when the petitioner is    prevented

in some extraordinary way from asserting his rights.     Coleman v.

Johnson, 184 F.3d 398, 402 (5th Cir. 1999).     In order for

equitable tolling to apply, Brooks must have diligently pursued

his § 2254 relief.    Id. at 403.

     Brooks has not established that this delay constitutes a

“rare and exceptional” circumstance warranting tolling of the

limitations period.   See Davis, 158 F.3d at 811.    His motion for
                           No. 05-40551
                                -3-

en banc initial hearing of his case to resolve the question of

whether all prisoners should receive tolling for the delay

between the denial of state postconviction relief and receipt of

notice of the denial is DENIED.

     Brooks asserts that he is also entitled to tolling for the

delay in receiving copies of his trial records from his attorney.

To the extent he is arguing that the one-year period should not

begin until he obtained the records, pursuant to 28 U.S.C.

§ 2244(d)(1)(D), the district court did not grant a certificate

of appealability (COA) on this issue and Brooks did not request

one from us now.   Therefore, the claim is not properly before

this Court.   See Lackey v. Johnson, 116 F.3d 149, 151-52 (5th

Cir. 1997).   As to Brooks’s equitable tolling claim, he again has

not established that he is entitled to relief on this ground.

See Davis, 158 F.3d at 811; Ott v. Johnson, 192 F.3d 510, 514

(5th Cir. 1999).   The judgment of the district court is thus

AFFIRMED.
