                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   July 28, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-30803
                          Summary Calendar


WILTON MCGEE,

                                               Petitioner-Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                               Respondent-Appellee.
                        --------------------
            Appeal from the United States District Court
                for the Middle District of Louisiana
                            (02-CV-850-B)
                        --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant Wilton McGee, Louisiana prisoner #370747,

was convicted of second degree murder by a Louisiana jury on July

26, 1996.   The trial court sentenced McGee to life imprisonment at

hard labor without parole, probation, or suspension of sentence.

The Louisiana Court of Appeal affirmed McGee’s conviction and

sentence on April 8, 1998.      McGee did not seek review in the

Louisiana Supreme Court until November 10, 1999, well after the

thirty days for seeking a writ from the Louisiana Supreme Court, as

provided in LA. SUP. CT. R. X, ¶ 5(a).   McGee concedes that his writ


     *
       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this opinion should not be published and is not precedent except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.
request   was   filed   out-of-time.   The   Louisiana   Supreme   Court

summarily denied McGee a supervisory writ on June 23, 2000.           In

August 2002, after McGee’s applications for state postconviction

relief were denied, he filed the 28 U.S.C. § 2254 petition that is

the subject of this appeal.

     The district court dismissed McGee’s petition as time-barred

under the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA)

one-year limitations period, set forth in 28 U.S.C. § 2244(d)(1).

A certificate of appealability (COA) was granted on the issue

whether McGee’s conviction became final for limitations purposes

either (a) on the date the time expired for seeking a supervisory

writ in   the Louisiana Supreme Court or (b) on the date the

Louisiana Supreme Court actually denied McGee’s apparently untimely

writ application.

     The AEDPA established a one-year limitations period for the

filing of a writ of habeas corpus by a person in state custody.

See 28 U.S.C. § 2244(d); Ott v. Johnson, 192 F.3d 510, 512 (5th

Cir. 1999).     The limitations period commences on the date the

judgment in question becomes final by the conclusion of direct

review or the expiration of the time for seeking such review.

§ 2244(d)(1)(A).

     As noted, the Louisiana Court of Appeal affirmed McGee’s

conviction and sentence on April 8, 1998.     McGee had “within thirty

days of the mailing of the notice of the original judgment of the

court of appeal” to make his application to the Louisiana Supreme

                                   2
Court.    LA. SUPR. CT. R. X, § 5(a).         As McGee allowed the time for

seeking further direct review to expire, the plain language of 28

U.S.C.     §     2244(d)(1)(A)    establishes      that      AEDPA’s    one-year

limitations period started to run on May 8, 1998, which is “the

expiration of the time for seeking such review.”                       28 U.S.C.

§ 2244(d)(1)(A); see also Roberts v. Cockrell, 319 F.3d 690, 694

(5th Cir. 2003) (if defendant stops the appeal process before entry

of judgment by court of last resort, the conviction becomes final

when the time for seeking further direct review in the state court

expires).      Therefore, pursuant to 28 U.S.C. § 2244(d)(1)(A), the

limitations period in McGee’s case commenced on May 8, 1998.

       The issue is whether McGee’s out-of-time filing of his request

for a supervisory writ had any impact on either the commencement or

the running of the limitations period.           McGee relies on O’Sullivan

v.   Boerckel,     526   U.S.   838,   845   (1999),   and    argues   that   his

conviction became final for limitations purposes on the date that

the Louisiana Supreme Court actually denied his untimely writ

application.       McGee’s reliance on O’Sullivan is misplaced.                In

O’Sullivan, the Supreme Court concluded that state prisoners must

give     state     courts   one    full      opportunity     to   resolve     any

constitutional issues by invoking one complete round of the state’s

established appellate review process.             Id. at 840.      The Supreme

Court held in O’Sullivan that the petitioner’s failure to present

three of his federal habeas claims to the Illinois Supreme Court in

a timely fashion resulted in a procedural default of those claims.

                                        3
Id. at 848.      O’Sullivan does not specifically address what effect

an out-of-time filing would have on the AEDPA limitations period

and therefore does not provide McGee with authority for the relief

that he seeks.      See id. at 840-848.

      Our recent analysis in the Salinas v. Dretke, 354 F.3d 425

(5th Cir.), cert. denied, 124 S. Ct. 2099 (2004), demonstrates that

McGee’s    conviction     became    final      for    the   AEDPA’s       limitations

purposes    on   the     date   that    the    time    expired      for    seeking   a

supervisory writ in the Louisiana Supreme Court, not the date that

the   Louisiana     Supreme      Court       denied    McGee’s      untimely    writ

application.       The    Salinas      panel   decided      that,    in    Texas,    an

out-of-time petition for discretionary review is in the nature of

habeas relief and that the grant of such relief “tolls [the]

AEDPA’s statute of limitations until the date on which the Court of

Criminal Appeals declines to grant further relief, but it does not

require a federal court to restart the running of [the] AEDPA’s

limitations period altogether.”              Id. at 430 (footnote omitted).

      In Louisiana, as in Texas, leave to file an out-of-time writ

application is obtained through the collateral review process. See

State v. Counterman, 475 So. 2d 336, 338-39 (La. 1985) (the

appropriate procedural vehicle for a defendant to seek the exercise

of his right to appeal, after the time for filing an appeal has

expired, is an application for post conviction relief); State v.

Cage, 637 So. 2d 89, 90 (La. 1994) (transfer to district court of

out-of-time rehearing application filed in Louisiana Supreme Court

                                         4
with    instructions     to    consider      rehearing      application       as   an

application for postconviction relief); Williams v. Cain, 217 F.3d

303, 308 (5th Cir. 2000) (emphasizing that Louisiana Supreme Court

Rule X, § 5(a), “sets out no specific exceptions to, or exclusions

from, the [30-day-filing] requirement” and that the rule expressly

“forbids any extension of the thirty-day limit”).                Thus, under the

rationale set forth in Salinas, the AEDPA limitations period would

be tolled only while McGee sought and obtained leave to file the

out-of-time writ request.             See Salinas, 354 F.3d at 430.                In

McGee’s case, however, more than a year elapsed after May 8, 1998

(the triggering date for the AEDPA limitations period) before McGee

filed    his   out-of-time      writ    request      on     November    10,    1999.

Consequently, McGee’s out of-time writ application did not toll the

limitations    period.        Also,    McGee   did    not    have   state     habeas

applications pending during the limitations period.                 Thus, tolling

pursuant to 28 U.S.C. § 2244(d)(2) is not at issue.                    The one-year

limitations period therefore ran untolled and uninterrupted from

May 8, 1998 to May 9, 1999, when it expired.

       For the foregoing reasons, the judgment of the district court

is

AFFIRMED.




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