Stromile, et al v. Dretke

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 25, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41686
Summary Calendar
DONALD STROMILE,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(G-00-CV-594)
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Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Donald Stromile, Texas prisoner # 796587,
appeals the district court’s denial of his 28 U.S.C. § 2254 claim
that the prosecutor’s closing argument expressing a personal belief
of Stromile’s guilt violated his rights under the Due Process
Clause of the Constitution. This is the same issue on which the
district court granted a certificate of appealability (COA) after
ruling that Stromile’s petition was not time-barred under 28 U.S.C.
§ 2244(d)(1). We have subsequently rejected this basis for denying

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Cockrell’s time-bar argument. See Roberts v. Cockrell, 319 F.3d
690, 694-95 (5th Cir. 2003). A review of the record reveals that
Stromile’s petition is indeed time-barred, as the limitations
period was not tolled by his state habeas application, filed after
expiration of the period, or by his previous habeas petition, which
he voluntarily dismissed. See Grooms v. Johnson, 208 F.3d 488,
489-90 (5th Cir. 1999); 28 U.S.C. § 2244(d). Denial of habeas
relief may be —— and is —— affirmed on this alternate basis. See
Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th
Cir. 1981). We deny as moot Stromile’s motion for appointment of
counsel.
AFFIRMED; MOTION DENIED.

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