### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 R a m o n D e leon, Texas prisoner # 1 204504, was convicted of capital murder in 2003 and sentenced t o life in prison. His probation for an u n related drug case was also revoked, and he w a s sentenced to t en years. In May 2011, after the state court denied habeas relief, Deleon filed a 28 U.S.C. § 2254 petition

c hallenging the murder conviction, although he a lso referenced the drug U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 15, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-20500 Document: 00512406861 Page: 1 Date Filed: 10/15/2013No. 11-20500

conviction. Before the state was served and f i l e d an answer, the district court

s u a s p o n te dismissed the petition as time-barred, reasoning th a t b o t h c o nvi c t i o n s became final l ong before Deleon filed for e ither state o r f ederal 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 s ua sponte dismissing t he applicatio n a s time barred without giving D eleon notice or an opportunity to respond.” Deleon d o es n ot address the propriety of the district court’s sua sponte action nor his o ppor t u n i t y t o respond, and t he issue is therefore abandoned. See Yohey v. Collins , 9 85 F.2d 222, 2 24–25 (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 i s devoted to arguing the merits of his claim that his c apital murder conviction was obtained in violation of the constitution due to, i nter a lia , i n e f f e ctive assistance o f counsel and prosecutorial misconduct. We do not consider these argument s . See Carty v. Thaler , 583 F.3d 244, 266 (5th Cir. 2009) (“Because neither we nor the district court granted Carty a COA o n t h i s i s sue, we lack jurisdiction t o consider this claim.”). Deleon m a kes only passing r eferences t o the district court’s a pplication of t h e s tatute of limitations. To the extent these preserved appellate r evie w , w e note t hat a lthough the district court did n o t g i v e Deleon e xplicit notice of the limitations i ssue prior to dismissal, s ee Day v. McDonough , 5 47 U.S. 198, 210, 126 S. Ct. 1675, 1684 (2006), Deleon acknowledged in his § 2 254 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). T he district court addressed

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those a rguments, t h e state has n ot waived application o f 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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