IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11293 Summary Calendar

GARY HAMPTON,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CV-1726-A -------------------- September 24, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Gary Hampton (“Hampton”), Texas state prisoner #776384,

appeals the district court’s dismissal of his

petition challenging his conviction for possession of

methamphetamine as time-barred. Hampton argues that the statute of

limitations period should be equitably tolled because due to a

malfunction of the prison’s postage scale, his state habeas

application was returned for insufficient postage.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11293 -2-

This court reviews a district court’s decision whether to

apply equitable tolling for abuse of discretion. See Fisher v.

Johnson,

(5th Cir. 1999). The limitations period

may be equitably tolled, but only in “rare and exceptional

circumstances.” See Felder v. Johnson,

(5th

Cir.), cert. denied,

(2000). When determining

whether the statute of limitations period should be equitably

tolled the prisoner carries the burden of proof. See Phillips v.

Donnelly,

(5th Cir. 2000), modified by Phillips

v. Donnelly,

(5th Cir. 2000). Hampton has failed to

establish that he is entitled to equitable tolling because Hampton

has not shown that his state habeas application was returned on

January 13, 2000, for insufficient postage or that he re-mailed the

application on January 14, 2000, which would support his contention

that he re-mailed his state habeas application prior to the

expiration of the limitations period.

Accordingly, the district court’s dismissal of Hampton’s

petition is AFFIRMED.

Hampton’s motion to supplement the record on appeal is

DENIED.