IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40869
Summary Calendar
GUSTAVO ALMAGUER,
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
USDC No. 98-CV-2
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August 10, 2000
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gustavo Almaguer, Texas state prisoner # 673522, argues that
the district court erred in dismissing his 28 U.S.C. § 2254
habeas corpus petition as time-barred pursuant to 28 U.S.C.
§ 2244(d)(1). Almaguer argues that the district court relied on
the prison mail log, which contained inaccurate information, in
dismissing his petition. Almaguer also argues that the
limitations period was equitably tolled for various reasons.
The district court did not grant a certificate of
*
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that this opinion should not be published and is not precedent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. 98-40869
-2-
appealability (COA) on the equitable-tolling issue, and Almaguer
has not filed a motion for COA with this court seeking review of
that issue. Therefore, the equitable-tolling issue is not within
the scope of the court’s review. See Lackey v. Johnson, 116 F.3d
149, 151 (5th Cir. 1997); United States v. Kimler, 150 F.3d 429,
430 (5th Cir. 1998).
A prisoner’s habeas petition is deemed filed when delivered
to prison authorities for mailing to the district court. Sonnier
v. Johnson, 161 F.3d 941, 945 n.2 (5th Cir. 1998). The district
court appears to have granted the respondent’s motion to dismiss
based on a misconception that the date that a prisoner’s petition
is “mailed” from the prison to the district court determines the
filing date for limitations purposes.
It is not clear from the prison mail log whether Almaguer
delivered the petition to prison authorities on December 31 or if
the petition was mailed by the prison on that date. If Almaguer
delivered the petition to prison officials on or before December
24, 1997, the petition was filed timely.
The district court’s judgment is VACATED, and the case is
REMANDED to the district court to determine the date that
Almaguer delivered the petition to prison officials for mailing.
Almaguer’s motion requesting consideration of equitable-
tolling issues, which was filed approximately eight months after
his initial brief, is DENIED.
VACATED AND REMANDED.