United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-10230
Summary Calendar
DAVID MICHAEL GORDON,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-1095
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Michael Gordon, Texas prisoner # 877573, appeals the
district court’s dismissal of his 28 U.S.C. § 2254 habeas
petition based on the statute of limitations. Gordon was
convicted following a guilty plea to aggravated sexual assault of
a child under fourteen years and sexual assault of a child and
was sentenced to terms of imprisonment of 45 years and 20 years.
We previously vacated the district court’s denial of relief
on the merits and remanded the case to the district court for
*
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this opinion should not be published and is not precedent except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. 06-10230
-2-
further proceedings regarding Gordon’s ineffective assistance of
counsel claims and the district court’s timeliness ruling. On
remand, following an evidentiary hearing, the district court
determined that the petition was time-barred, but granted a
certificate of appealability (COA) on the issue whether the
statute of limitations should be equitably tolled. Gordon argues
that the statute of limitations should be equitably tolled
because the Texas Court of Criminal Appeals failed to give him
official notice when his state habeas application was denied.
“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.” Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001)
(internal quotation marks omitted). Equitable tolling does not
apply if the petitioner does not diligently seek habeas relief.
Id.
The district court’s decision not to apply equitable tolling
was not an abuse of discretion. Gordon did not file his state
application for over nine months, he did not provide the state
court with his mailing address when he arrived at the Robertson
Unit, and his federal petition was not filed until two months
after he received notice that his state application was denied.
Although the State’s delay was a factor to consider in
determining the equitable tolling issue, Gordon’s ultimate
failure to act with due diligence precludes the application of
No. 06-10230
-3-
equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th
Cir. 2000). Thus, the district court did not abuse its
discretion in failing to apply the doctrine of equitable tolling.
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
Because a ruling on the time-bar issue is dispositive of the
case, further briefing is not required. The judgment of the
district court is AFFIRMED. Gordon’s motion for a COA and motion
to stay the ruling on his COA motion are DENIED as unnecessary.