Talbert v. Cockrell

* 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that this opinion should not be published and is not precedent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
June 5, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 02-20301
Summary Calendar
____________________
LOUIS DONNELL TALBERT,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-00-CV-2260)
_________________________________________________________________
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Louis Donnell Talbert, Texas prisoner # 805926, was convicted
of aggravated robbery. He appeals the dismissal of his 28 U.S.C.
§ 2254 petition as time-barred. (Talbert's motion to supplement
the record with the state court’s mandate from his direct appeal
and from the denial of his first state application for
postconviction relief is DENIED as moot, as discussed infra.)

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2
Our court granted a certificate of appealability (COA) on two
issues: (1) whether the Texas Court of Criminal Appeals issues a
mandate from the denial of a state application for postconviction
relief; and (2) whether, for purposes of determining the
limitations period under 28 U.S.C. § 2244(d)(2), the state
application remains pending until the mandate issues.
“The time during which a properly filed application for State
post-conviction or other collateral review ... is pending shall not
be counted toward any period of limitation under this subsection”.
28 U.S.C. § 2244(d)(2). Talbert contends that the state court’s
judgment remains pending until the mandate issues, or, if no
mandate issues, for 25 days following that judgment pursuant to
TEX. R. APP. P. 18.1(b) and 79.1.
We need not determine whether a state habeas application is
“pending” until either a mandate issues or 25 days from the state
court judgment. First, no mandate from the state court’s denial of
Talbert’s first application for postconviction relief is contained
in the record; and, in response to the motion to supplement the
record with the mandate, the appellee has stated that no mandate
issued. Second, even assuming Talbert was entitled to 25 days of
tolling for the issuance of the mandate pursuant to Rules 18.1(b)
and 79.1, but see TEX. R. APP. P. 79.2, he concedes that his § 2254
petition had to have been filed by 11 June 2000. Talbert failed,
however, to file his petition until 26 June, at the earliest.

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3
Therefore, regardless of whether his state petition remained
“pending”, it was untimely.
Talbert raises several other issues. Because they are beyond
the scope of the COA, we do not address them. E.g., Lackey v.
Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (review limited to the
issues specified in COA).
AFFIRMED; MOTION DENIED

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