Garcia v. Dretke

* 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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 9, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40359
Summary Calendar
ALFREDO GARCIA,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:02-CV-664
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Before JONES, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Alfredo Garcia, Texas prisoner # 668073, appeals the dismissal
of his petition for a writ of habeas corpus challenging the
revocation of his release on mandatory supervision as time-barred.
The district court granted a certificate of appealability (COA)
with respect to the question whether Garcia’s motion to reopen the
revocation proceedings constituted “other collateral review” for
purposes of 28 U.S.C. § 2244(d)(2). We need not decide this
question in this case. Even if it is assumed that Garcia’s motion

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constituted “other collateral review,” the limitation period
nevertheless expired prior to the filing of the federal habeas
petition. See 28 U.S.C. § 2244(d)(1)(D). Although Garcia contends
that he is entitled to equitable tolling, COA was not granted as to
that question.
AFFIRMED.

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