IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30022 Summary Calendar

WENDELL V. GRAY,

Petitioner-Appellant,

versus

JAMES M. LEBLANC, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CV-1331-J -------------------- November 21, 2001

Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Wendell V. Gray, Louisiana prisoner # 300228, was granted a

certificate of appealability (COA) on the issue whether the

district court erred in dismissing his

petition

as barred by the one-year statute of limitations in

(d). Gray argues that the limitations period should be

equitably tolled during the time that he diligently sought a copy

of the transcript of the postconviction evidentiary hearing which

was allegedly necessary to enable him to file a writ application

to the Louisiana court of appeal. Gray has not shown that 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-30022 -2-

transcript of the postconviction evidentiary hearing was

necessary to enable him to file a writ application to the

Louisiana court of appeal. The limitations period was tolled

from the time that Gray filed his state habeas application on

October 24, 1997, to the date that the state trial court denied

the application on September 4, 1998. See § 2244(d)(2). Prior

to October 24, 1997, 203 days of the one-year limitations period

had elapsed. The limitations period was not tolled from

September 4, 1998, to March 19, 1999, during the period in which

Gray did not have a writ application to the court of appeal

pending. See Melancon v. Kaylo,

(5th Cir.

2001). Gray’s motion to correct an illegal sentence filed on

February 11, 1999, did not toll the limitations period under

§ 2244(d)(2). During this period, 195 days of the limitations

period elapsed. Because Rule 4-3 of the Louisiana Uniform Rules

of the Courts of Appeal allowed the court of appeal to consider

Gray’s untimely writ application and the court of appeal did

consider Gray’s writ application on the merits, Gray’s writ

application to the Louisiana court of appeal was properly filed.

See id. at 405. However, as of March 19, 1999, the time in which

the limitations period was running exceeded 365 days. Therefore,

Gray’s federal habeas petition was barred by the one-year statute

of limitations. Further, Gray is not entitled to equitable

tolling because he waited approximately six months from the state

trial court’s denial of his habeas application to file a writ

application to the Louisiana court of appeal and because he

waited an additional two months from the Louisiana Supreme No. 01-30022 -3-

Court’s denial of his writ application to file his federal habeas

petition. See Melancon,

; Coleman v. Johnson,

(5th Cir. 1999), cert. denied,

(2000).

AFFIRMED.