                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 19, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-10011
                         Summary Calendar



NOLAN WAYNE SCALES,

                                               Petitioner-Appellant,

versus


DOUG DRETKE, 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. 3:03-CV-1237-R
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant,   Nolan   Wayne   Scales,   Texas   prisoner

# 798414, appeals the district court’s dismissal of his 28 U.S.C.

§ 2254 petition challenging his murder conviction as barred by the

one-year statute of limitations in 28 U.S.C. § 2244(d).               The

district court granted a certificate of appealability (COA) on the

issue whether the filing of Scales’s federal habeas petition is

subject to equitable tolling.   Scales’s conviction became final on

     *
       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this opinion should not be published and is not precedent except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.
July 31, 2000, the last date for seeking direct review from the

Texas Court of Criminal Appeals.    See 28 U.S.C. § 2244(d)(1)(A);

Salinas v. Dretke, 354 F.3d 425, 430 (5th Cir), cert. denied, 124

S. Ct. 2099 (2004).   Scales had one year, or until July 31, 2001,

in which to file a federal habeas petition. The limitations period

was tolled from February 21, 2001, the date on which he filed his

state habeas application, until May 9, 2001, the date on which it

was denied.   At that time, Scales had 160 days remaining, or until

October 16, 2001, to file a timely federal habeas petition.      His

second state habeas application did not toll the limitations period

because it was filed on November 7, 2001, after the expiration of

the limitations period.   See Scott v. Johnson, 227 F.3d 260, 263

(5th Cir. 2000).

     Scales argues that the limitations period should have been

equitably tolled from May 5, 2003, the date on which his second

state habeas application was denied, until May 27, 2003, the date

on which he received notice of the decision.       The limitations

period expired on October 16, 2001, however, before Scales filed

his second state habeas application on November 7, 2001, so the

limitations period was not tolled during the pendency of Scales’s

second state habeas application.   See Scott, 227 F.3d at 263.

AFFIRMED.
