No. 99-40726
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40726
Conference Calendar
WILLIAM STANLEY FRY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-98-CV-196
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April 12, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Texas prisoner William Stanley Fry, through counsel,
challenges the district court’s dismissal of his 28 U.S.C. § 2254
habeas corpus petition as time-barred, pursuant to 28 U.S.C.
§ 2244(d). Specifically, he contends that the district court
erred in failing to conclude that the limitations period was
tolled, pursuant to § 2244(d)(2), during the 90-day period in
which he could have sought a writ of certiorari from the United
*
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that this opinion should not be published and is not precedent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. 99-40726
-2-
States Supreme Court. His argument is without merit. See Ott v.
Johnson, 192 F.3d 510, 513 (5th Cir. 1999).**
Fry has abandoned his argument that the limitations period
should have been equitably tolled during the pendency of his
unsuccessful motions for leave to file an untimely petition for
discretionary review and during the time he could have sought
reconsideration of those denials. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993). He argues instead, for the first
time on appeal, the limitations period should have been tolled
during the time he could have sought reconsideration of the state
appellate court’s denial of his habeas application. Fry moves to
have the question certified to the Texas Court of Criminal
Appeals. Because the argument is raised for the first time on
appeal, we will not consider it. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). The motion to
certify questions to the Texas Court of Criminal Appeals is
DENIED.
Fry’s appeal is without arguable merit and is therefore
DISMISSED. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2.
APPEAL DISMISSED; MOTION DENIED.
**
This decision was rendered after the district court
granted a certificate of appealability in the instant case.