UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-20971
Summary Calendar
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JOSE JESUS PARDO,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-3068)
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March 1, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:1
Jose Jesus Pardo (Texas prisoner #626222) contests the
dismissal of his 28 U.S.C. § 2254 petition as time-barred under the
one-year limitations period of the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d). Pardo was granted
a certificate of appealability (COA) on the following issue:
whether, in the light of the doctrine of equitable tolling, the
district court properly dismissed the petition as time-barred.2
1
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this opinion should not be published and is not precedent except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.
2
In his principal brief, Pardo presents the merits of his
constitutional claims. Those claims exceed his COA. See Lackey v.
Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997). In any event, we
lack jurisdiction to consider them, because the district court did
Pardo contends that such tolling should apply, because: a
prison transfer prevented him from receiving notice that his prior
filed § 2254 petition, that he believed was still pending, had been
dismissed without prejudice in January 1995; the district court
failed to resend copies of its dismissal order and judgment after
receiving his change-of-address notice; he did not learn about the
dismissal until he received a copy of the district court’s docket
sheet in response to his July 1997 letter of inquiry; and he filed
his second petition shortly thereafter.
The record reflects that, after Pardo’s first petition was
dismissed without prejudice, the district court clerk attempted to
send him copies of the order of dismissal and final judgment. That
attempt proved unsuccessful, because the clerk had not received
Pardo’s change-of-address notice. Shortly thereafter, Pardo
inquired by letter to the district court about the status of his
case and requested the appointment of counsel. Although Pardo
received no response, he waited approximately 26 months before he
sent a second letter in July 1997 and learned that his first
petition had been dismissed. The one-year grace period within
not address them as an alternative to its procedural holding. See
Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998).
For the first time in his reply brief, Pardo raises two new
issues regarding the timeliness of his § 2254 petition. Those
issues, one of which involves equitable tolling and the other of
which involves an unconstitutional state impediment, are both based
on the failure of his prison law library to receive a copy of AEDPA
until 14 April 1997. Because those issues were not raised in
Pardo’s initial COA application and because they are raised for the
first time in his reply brief, they are not properly before us.
See Lackey, 116 F.3d at 151-52; Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993).
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which Pardo could have filed a timely § 2254 petition expired in
April 1997, toward the end of that 26-month period. See Flanagan
v. Johnson, 154 F.3d 196, 199-200, 202 (5th Cir. 1998)(§ 2254
petitioners whose convictions became final prior to the AEDPA’s
effective date had until 24 April 1997 to seek federal habeas
relief).
Pardo offers no explanation why he waited 26 months before
taking further action to learn about the status of his first
petition. In order to be entitled to equitable tolling, he had to
pursue habeas relief diligently. See Coleman v. Johnson, 184 F.3d
398, 403 (5th Cir. 1999). He failed to do so. Accordingly, the
district court did not abuse its discretion in refusing to apply
equitable tolling. See id.; Ott v. Johnson, 192 F.3d 510, 513 (5th
Cir. 1999).
AFFIRMED
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