IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20500

Summary Calendar

LUIS RAMON DELEON,

Petitioner-Appellant

v.

WILLIAM STEPHENS, 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. 4:11-CV-2047

Before REAVLEY, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

Luis Ramon Deleon, Texas prisoner # 1204504, was convicted of capital

murder in 2003 and sentenced to life in prison. His probation for an unrelated

drug case was also revoked, and he was sentenced to ten years. In May 2011,

after the state court denied habeas relief, Deleon filed a 28 U.S.C. § 2254 petition

challenging the murder conviction, although he also referenced the drug

United States Court of Appeals

Fifth Circuit

F I L E D

October 15, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 11-20500

conviction. Before the state was served and filed an answer, the district court

sua sponte dismissed the petition as time-barred, reasoning that both convictions

became final long before Deleon filed for either state or federal relief. Deleon

appeals.

Our appellate jurisdiction is limited to the issue upon which a certificate

of appealability (“COA”) was granted, see Lewis v. Thaler, 701 F.3d 783, 787 (5th

Cir. 2012), which in this case is “whether the district court erred in sua sponte

dismissing the application as time barred without giving Deleon notice or an

opportunity to respond.” Deleon does not address the propriety of the district

court’s sua sponte action nor his opportunity to respond, and the issue is

therefore abandoned. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993);

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987). Instead, virtually all of Deleon’s appellate brief is devoted to arguing the

merits of his claim that his capital murder conviction was obtained in violation

of the constitution due to, inter alia, ineffective assistance of counsel and

prosecutorial misconduct. We do not consider these arguments. See Carty v.

Thaler, 583 F.3d 244, 266 (5th Cir. 2009) (“Because neither we nor the district

court granted Carty a COA on this issue, we lack jurisdiction to consider this

claim.”).

Deleon makes only passing references to the district court’s application of

the statute of limitations. To the extent these preserved appellate review, we

note that although the district court did not give Deleon explicit notice of the

limitations issue prior to dismissal, see Day v. McDonough, 547 U.S. 198, 210,

126 S. Ct. 1675, 1684 (2006), Deleon acknowledged in his § 2254 petition that his

habeas claims were filed more than one year after his conviction became final,

and he set forth his arguments against application of limitations. Cf. Dillard v.

Quarterman, 237 F. App’x. 940, 941 (5th Cir. 2007). The district court addressed

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No. 11-20500

those arguments, the state has not waived application of the time bar, and we

perceive no error in the district court’s conclusions.

The district court’s judgment is therefore AFFIRMED.

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