United States Court of Appeals, Fifth CircuitAug 23, 2007
246 Fed. Appx. 269 (5th Cir. 2007)

No. 03-11106, Summary Calendar.

August 23, 2007.

Christopher Radke, Gatesville, TX, pro se.

S. Michael Bozarth, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:02-CV-2430-R.

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

Petitioner-Appellant Christopher Radke, Texas prisoner # 806352, appeals the district court's dismissal of his 28 U.S.C. § 2254 application challenging his conviction of murder. The district court dismissed the application as time-barred. We granted a certificate of appealability (COA) on the issue whether "the limitations period should have been equitably tolled because Radke did not receive timely notice of the denial of his state habeas application."

Radke argues on appeal that he is entitled to equitable tolling because (1) he did not receive notice of the denial of his state habeas application until 37 days after the denial, and (2) the district court erred in not considering his objections concerning equitable tolling.

As Radke's petition is time-barred irrespective of the applicability of the doctrine of equitable tolling to his case, we need not reach the question for which the COA was granted. Radke's conviction became final on February 22, 2000, 90 days after his petition for discretionary review was denied on November 24, 1999. See SUP.CT.R. 13. The one-year limitations period thus expired in February 2001, more than five months before Radke filed his state habeas application on August 6, 2001, and more than 20 months before he filed his § 2254 application on November 2, 2002. See 28 U.S.C. § 2244(d). As the statute of limitations expired before Radke filed his state habeas application, the issue whether he should receive equitable tolling because of his failure to receive timely notice of the denial of his state habeas application is irrelevant. Accordingly, the district court's judgment is