Garcia v. Dretke

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 9, 2006

Charles R. Fulbruge III Clerk No. 04-40359 Summary Calendar

ALFREDO GARCIA,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 3:02-CV-664 --------------------

Before JONES, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Alfredo Garcia, Texas prisoner # 668073, appeals the dismissal

of his petition for a writ of habeas corpus challenging the

revocation of his release on mandatory supervision as time-barred.

The district court granted a certificate of appealability (COA)

with respect to the question whether Garcia’s motion to reopen the

revocation proceedings constituted “other collateral review” for

purposes of 28 U.S.C. § 2244(d)(2). We need not decide this

question in this case. Even if it is assumed that Garcia’s motion

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. constituted “other collateral review,” the limitation period

nevertheless expired prior to the filing of the federal habeas

petition. See 28 U.S.C. § 2244(d)(1)(D). Although Garcia contends

that he is entitled to equitable tolling, COA was not granted as to

that question.

AFFIRMED.