IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50454 Summary Calendar

JOE FRED BURLESON,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CV-519-EP -------------------- December 19, 2000 Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Joe Fred Burleson, Texas inmate #709759, proceeding pro

se, and in forma pauperis, appeals the district court’s denial of

his

petition. In Scott v. Johnson,

(5th Cir. 2000), we sanctioned the sua sponte application of

the

(d) one-year statute of limitations provided

that the State had not intentionally waived the limitations defense

and provided that the petitioner had notice and a reasonable

opportunity to respond to the proposed application of the statute

of limitations. Respondent asserted the limitations defense in the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-50454 -2-

district court, and Burleson had at least two opportunities to

argue against application of the

(d) statute of

limitations.

The record indicates that Burleson submitted his

petition more than fifteen months after the

limitations period expired. Burleson’s state habeas application,

which was filed after the one-year limitations period expired, did

not toll the period. The limitations period also was not tolled by

statute while Burleson’s prior, federal habeas petition was

pending. See Grooms v. Johnson,

, 489 (5th Cir. 1999)

(holding that the

(d) limitations period is not

tolled while a prior federal habeas petition is pending).

Burleson provided no argument in favor of the application

of equitable tolling in his case. “Equitable tolling applies

principally where the plaintiff is actively misled by the defendant

about the cause of action or is prevented in some extraordinary way

from asserting his rights.” Grooms, 208 F.3d at 489-90 (citation

and internal quotations omitted). The record discloses no grounds

for the application of equitable tolling. Accordingly, Burleson’s

petition is barred by the statute of limitations

in

(d). The district court’s judgment is VACATED

and the case is REMANDED for entry of judgment in accordance with

this opinion.

VACATED and REMANDED.