                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                     June 5, 2003
                         ____________________
                                                            Charles R. Fulbruge III
                             No. 02-20301                           Clerk
                           Summary Calendar
                         ____________________

                       LOUIS DONNELL TALBERT,

                                                 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
                          (H-00-CV-2260)
_________________________________________________________________

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

      Louis Donnell Talbert, Texas prisoner # 805926, was convicted

of aggravated robbery.      He appeals the dismissal of his 28 U.S.C.

§ 2254 petition as time-barred.        (Talbert's motion to supplement

the record with the state court’s mandate from his direct appeal

and   from   the   denial   of   his   first   state   application      for

postconviction relief is DENIED as moot, as discussed infra.)




      *
        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that this opinion should not be published and is not precedent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.
     Our court granted a certificate of appealability (COA) on two

issues:   (1) whether the Texas Court of Criminal Appeals issues a

mandate from the denial of a state application for postconviction

relief;   and    (2)     whether,    for     purposes   of   determining    the

limitations     period    under     28   U.S.C.   §   2244(d)(2),   the    state

application remains pending until the mandate issues.

     “The time during which a properly filed application for State

post-conviction or other collateral review ... is pending shall not

be counted toward any period of limitation under this subsection”.

28 U.S.C. § 2244(d)(2).        Talbert contends that the state court’s

judgment remains pending until the mandate issues, or, if no

mandate issues, for 25 days following that judgment pursuant to

TEX. R. APP. P. 18.1(b) and 79.1.

     We need not determine whether a state habeas application is

“pending” until either a mandate issues or 25 days from the state

court judgment. First, no mandate from the state court’s denial of

Talbert’s first application for postconviction relief is contained

in the record; and, in response to the motion to supplement the

record with the mandate, the appellee has stated that no mandate

issued.   Second, even assuming Talbert was entitled to 25 days of

tolling for the issuance of the mandate pursuant to Rules 18.1(b)

and 79.1, but see TEX. R. APP. P. 79.2, he concedes that his § 2254

petition had to have been filed by 11 June 2000.              Talbert failed,

however, to file his petition until 26 June, at the earliest.




                                         2
Therefore,   regardless   of   whether   his    state   petition   remained

“pending”, it was untimely.

     Talbert raises several other issues.         Because they are beyond

the scope of the COA, we do not address them.             E.g., Lackey v.

Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (review limited to the

issues specified in COA).


                                               AFFIRMED; MOTION DENIED




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