Summary Calendar TARRANCE DARON WHITLOCK v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional…

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
06-11066
Summary Calendar
TARRANCE DARON WHITLOCK
Petitioner-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-1232
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Pursuant to a certificate of appealability granted by this court in August
2007, Tarrance Daron Whitlock, Texas prisoner # 930799, appeals, pro se, the
district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as time barred.
In his petition, Whitlock challenges his bench-trial conviction, and resulting
sentence, for aggravated assault of a public servant. In that bench trial,
pursuant to a separate indictment, Whitlock was also convicted and sentenced
United States Court of Appeals
Fifth Circuit
F I L E D
August 8, 2008
Charles R. Fulbruge III
Clerk

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No. 06-11066
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on a separate charge of aggravated robbery. Following the joint bench trial,
Whitlock pursued a separate appeal for each of the two convictions.
Whitlock challenged the separate aggravated-robbery conviction in a prior
§ 2254 petition. We reject the State’s assertion that the instant petition,
concerning the separate aggravated-assault conviction, is an unauthorized,
successive § 2254 petition. See Hardemon v. Quarterman, 516 F.3d 272, 275-76
(5th Cir. 2008) (holding a habeas petition is not successive when it attacks
separate judgments from the same court).
The initial filing of Whitlock’s state postconviction application challenging
that aggravated-assault conviction did not constitute a “properly filed”
application for purposes of 28 U.S.C. § 2244(d)(2) (staying AEDPA’s period of
limitation for “properly filed” state post-conviction applications) because the
Texas Court of Criminal Appeals determined the application failed to comply
with Rule 73.2 of the Texas Rules of Appellate Procedure (requiring post-
conviction applications to be on the form prescribed by the Texas Court of
Criminal Appeals). See Artuz v. Bennett, 531 U.S. 4, 8 (2000); Larry v. Dretke,
361 F.3d 890, 895 (5th Cir. 2004). Whitlock has not shown the State created an
unconstitutional or unlawful impediment to his filing his instant federal
petition concerning his aggravated-assault conviction. See 28 U.S.C.
§ 2244(d)(1)(B). Moreover, Whitlock has failed to show circumstances
warranting equitable tolling from the time he initially filed his state
postconviction application to the time that application was returned to him for
noncompliance. See Larry, 361 F.3d at 897. Accordingly, the dismissal of
Whitlock’s petition as time barred is AFFIRMED.

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