IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30619
Summary Calendar
KENNETH R. ALEXANDER,
Petitioner-Appellant,
versus
WARDEN, ALLEN CORRECTIONAL CENTER,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 98-CV-569
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December 28, 1999
Before GARWOOD, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:*
Kenneth R. Alexander, Louisiana prisoner # 122967, appeals
the district court’s dismissal of his petition for habeas relief
as time-barred pursuant to 28 U.S.C. § 2244(d). Alexander
contends that because he has raised a claim of actual innocence,
the Suspension Clause bars dismissal of his habeas petition on
limitations grounds. This challenge is not properly before this
court. The district court did not grant a certificate of
appealability (COA) on this issue and Alexander did not request
*
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that this opinion should not be published and is not precedent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.
No. 99-30619
-2-
that this court issue COA. See Lackey v. Johnson, 116 F.3d 149,
151-52 (5th Cir. 1997); cf. United States v. Kimler, 150 F.3d
429, 431 (5th Cir. 1998).
Alexander also maintains that the district court erred in
determining that his final state application for postconviction
relief, the sixth filed in the trial court, did not toll the
running of the limitations period as is stated in § 2244(d)(2).
This assertion is correct pursuant to Villegas v. Johnson, 184
F.3d 467, 469-71 (5th Cir. 1999). However, this court can affirm
the ruling of the district court on an alternate ground. See
Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992). Even if
the time during which Alexander’s fifth and sixth postconviction
filings in the state were tolled, Alexander’s federal habeas
petition was filed after the one-year limitations period had run.
As a result, the decision of the district court is AFFIRMED.