Summary Calendar CHRISTOPHER RADKE 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should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 23, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-11106
Summary Calendar
CHRISTOPHER RADKE
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. 3:02-CV-2430-R
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Christopher Radke, Texas prisoner # 806352, appeals
the district court’s dismissal of his 28 U.S.C. § 2254 application challenging his
conviction of murder. The district court dismissed the application as time-
barred. We granted a certificate of appealability (COA) on the issue whether
“the limitations period should have been equitably tolled because Radke did not
receive timely notice of the denial of his state habeas application.”

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No. 03-11106
2
Radke argues on appeal that he is entitled to equitable tolling because (1)
he did not receive notice of the denial of his state habeas application until 37
days after the denial, and (2) the district court erred in not considering his
objections concerning equitable tolling.
As Radke’s petition is time-barred irrespective of the applicability of the
doctrine of equitable tolling to his case, we need not reach the question for which
the COA was granted. Radke’s conviction became final on February 22, 2000,
90 days after his petition for discretionary review was denied on November 24,
1999. See SUP. CT. R. 13. The one-year limitations period thus expired in
February 2001, more than five months before Radke filed his state habeas
application on August 6, 2001, and more than 20 months before he filed his §
2254 application on November 2, 2002. See 28 U.S.C. § 2244(d). As the statute
of limitations expired before Radke filed his state habeas application, the issue
whether he should receive equitable tolling because of his failure to receive
timely notice of the denial of his state habeas application is irrelevant.
Accordingly, the district court’s judgment is
AFFIRMED.

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