                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 24, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-10873
                         Summary Calendar



DAVID MILTON GUNDRUM,

                                    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 Northern District of Texas
                       USDC No. 4:05-CV-69
                       USDC No. 4:05-CV-81
                      USDC No. 4:05-CV-114
                      --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     David Milton Gundrum, Texas prisoner # 1088250, appeals the

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

petitions as untimely.   Gundrum filed the petitions to attack his

three convictions for aggravated robbery with a deadly weapon.

The district court granted a certificate of appealability on the

issue whether Gundrum is entitled to equitable tolling for the

time that his initial state habeas applications were pending,

     *
       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this opinion should not be published and is not precedent except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. 05-10873
                                 -2-

given that the state court dismissed them for failure to comply

with Texas Rule of Appellate Procedure 73.2 due to the omission

of one page of the Texas form for application for a writ of

habeas corpus.

     Gundrum’s convictions became final on July 15, 2003, when

the time for seeking discretionary review by the Texas Court of

Criminal Appeals (TCCA) expired.    See Roberts v. Cockrell, 319

F.3d 690, 694 (5th Cir. 2003).   Gundrum had one year from that

date to file his § 2254 petition.   See 28 U.S.C. § 2244(d).      On

April 20, 2004, Gundrum filed three state habeas petitions

challenging his convictions.   On August 24, 2004, the TCCA

dismissed all three applications.   Gundrum filed federal habeas

applications on January 24, 2005.

     Equitable tolling of the one-year limitations period is

appropriate only in “rare and exceptional circumstances.”      Felder

v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000).    A district

court’s refusal to invoke the doctrine of equitable tolling is

reviewed only for abuse of discretion.     Ott v. Johnson, 192 F.3d

510, 513 (5th Cir. 1999).

     Gundrum’s situation resembles that in Larry v. Dretke, 361

F.3d 890 (5th Cir. 2004).   In that case, Larry filed a state

habeas application before the United States Supreme Court denied

his writ for certiorari in his direct appeal of his conviction,

i.e. before his conviction became final.    361 F.3d at 892.

Although Larry’s application remained in the Texas trial court
                             No. 05-10873
                                  -3-

for over a year and the trial court addressed the merits of

Larry’s habeas petition, the TCCA dismissed it for lack of

jurisdiction on the basis of the pending direct appeal.       Id.

Larry filed a second habeas application which was denied without

written order.    Id.   He then filed a federal habeas petition

which the district court dismissed as time-barred.      Id.   This

court affirmed, determining that the district court did not abuse

its discretion in declining to equitably toll the period of

limitations.     Id. at 895-96, 898.   The court stated, “Larry’s own

action . . . prevented him from asserting his rights.     If Larry

had ‘properly filed’ his state habeas application in accordance

with Texas law the federal statute of limitations would have

tolled for the entire period his application was pending before

the state habeas courts.”     Id. at 897.

     Like Larry, Gundrum’s own actions have prevented the

assertion of his rights.    Gundrum waited for a year after the

TCCA denied his PDR before filing his state habeas action,

leaving only 90 days before the end of the limitations period.

Gundrum provides no explanation for this delay.      See Fisher v.

Johnson, 174 F.3d 710, 715 (5th Cir. 1999) (“[E]quity is not

intended for those who sleep on their rights.”)(internal

quotation marks, parentheses, footnote, and citation omitted).

Like Larry, Gundrum has failed to show rare and exceptional

circumstances warranting equitable tolling.      Larry, 361 F.3d at

897; see also Felder, 204 F.3d at 170-71.
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                               -4-

     Accordingly, the district court did not abuse its discretion

in dismissing Gundrum’s instant application as barred by

limitations and the district court’s judgment is AFFIRMED.
