*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should not be published and is not precedent except under the limited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

 

No. 00-41471

 

JUAN MANUEL ALARCON,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

 

Appeal from the United States District Court

For the Eastern District of Texas

(5:00-CV-236)

 

January 11, 2002

Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit

Judges.

PER CURIAM:*

Juan Manuel Alarcon appeals the district court’s dismissal of

his 28 U.S.C. § 2254 petition as barred by the one-year statute of

limitations. We granted a Certificate of Appealability “on the

issue [of] whether Alarcon was entitled to the benefit of equitable

tolling while his transfer petition pursuant to the Prisoner

Transfer Treaty was pending.” Since Alarcon’s petition is timebarred irrespective of the applicability of the doctrine of
1 Alarcon raises additional questions in his appeal relating to the merits

of his petition. We cannot, however, reach questions that are not within the

scope of the COA. Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).

2 Tex. R. App. P. 68.2(a).

3 Lindh v. Murphy, 521 U.S. 320, 324-36 (1997) (stating that AEDPA applies

to petitions filed on or after April 24, 1996).

4 28 U.S.C. § 2244(d)(1).

5 Id. § 2244(d)(1)(A).

2

equitable tolling to his case, we need not reach the question on

which the COA was granted.1 We therefore affirm.

I

Alarcon was convicted of aggravated possession of a controlled

substance with intent to deliver on December 17, 1996 after a jury

trial. On January 12, 1998, the Texas Court of Appeals affirmed

Alarcon’s conviction. On February 11, 1998, the conviction became

final, as the time for Alarcon to file a petition for discretionary

review with the Texas Court of Criminal Appeals expired.2

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)

applies to Alarcon’s federal habeas petition,3 which was filed on

September 7, 2000, 939 days after his conviction became final. For

§ 2254 petitions, AEDPA imposes a one-year period of limitation.4

That period runs, for Alarcon, from “the date on which the judgment

became final by the conclusion of direct review or the expiration

of the time for seeking such review; ....”5 AEDPA also contains

provisions tolling this statute of limitations for “[t]he time

during which a properly filed application for State post-conviction
6 Id. § 2244(d)(2).

7 Phillips v. Donnelly, 216 F.3d 508, 510 (5th Cir. 2000).

8 Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).

9 At this point Alarcon needs only 523 more days of tolling in order for

his petition to be timely.

3

or other collateral review with respect to the pertinent judgment

or claim is pending ....”6 Finally, we have held that equitable

tolling is available,7 but only in “exceptional circumstances.”8

II

Therefore in order for Alarcon’s petition to be timely, he

must prove that the statute of limitations was tolled, by operation

of § 2244(d)(2) or equitably, for a total of 574 days. The facts

surrounding Alarcon’s two state petitions for collateral review are

undisputed. Alarcon filed his first state application on August

17, 1998. The Texas Court of Criminal Appeals denied this

application on October 7, 1998. Thus, the AEDPA limitations period

was tolled for 51 days.9 Alarcon’s second state petition was filed

on March 8, 1999 and dismissed for abuse of the writ on June 30,

1999, thus tolling the AEDPA limitations period for an additional

114 days.

Were these the only two instances of tolling to which Alarcon

could point us, his petition would be untimely by 409 days.

However, Alarcon claims that his petition for transfer pursuant to
10 November 25, 1976, U.S.—Mex., 28 U.S.T. 7399.

11 Respondent disputes that Alarcon made a proper petition under the treaty

on June 2, 1999 and argues that Alarcon’s only valid petition was transmitted to

the Governor of Texas on June 9, 2000. Since we ultimately conclude that

Alarcon’s petition is untimely even if the facts are as he alleges, we need not

address Respondent’s factual contentions.

12 28 U.S.T. at 7403 (“This Treaty shall apply only subject to the

following conditions ... no proceeding by way of appeal or of collateral attack

upon the offender’s conviction or sentence be pending ....”).

4

the Treaty on the Execution of Penal Sentences10 equitably tolled

the limitations period from June 2, 1999 until the denial of the

petition by the Governor of Texas on June 29, 2000.11 Specifically,

Alarcon claims that since the Treaty’s protections are unavailable

to anyone seeking collateral review,12 his failure to file a federal

habeas petition was directly related to his efforts to seek

transfer under the Treaty, and thus AEDPA’s limitation period is in

conflict with this provision of the Treaty.

We need not reach the question of whether a petition under the

Treaty equitably tolls AEDPA’s statute of limitations, however,

because even if such tolling is available, Alarcon’s petition is

untimely by 44 days. A pending petition from June 2, 1999 until

June 29, 2000 would, if equitable tolling were available, toll the

statute of limitations for 393 days. However, the limitations

period was already tolled from June 2-30, 1999 because of Alarcon’s

second state habeas petition. Therefore, any tolling from

Alarcon’s alleged Treaty petition would only be from June 30, 1999,

when his second state habeas petition was denied, until June 29,

2000, when his treaty petition was denied. This would result in
5

tolling of 365 days. Since we have earlier concluded that Alarcon

required 409 days of equitable tolling in order for his petition to

be timely, his federal habeas petition, filed on September 7, 2000,

was untimely by 44 days, even assuming application of equitable

tolling principles to this case. His petition is thus, as the

district court correctly concluded, time-barred.

We AFFIRM.