Graham 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this opinion should not be published and is not precedent except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
July 8, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-21098
Summary Calendar
DERRICK GRAHAM,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CV-1563
--------------------
Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit
Judges.
PER CURIAM:*
Derrick Graham, Texas prisoner # 813442, was convicted of
capital murder and was sentenced to life imprisonment. He
requests a certificate of appealability to appeal the district
court’s dismissal of his 28 U.S.C. § 2254 petition as time-
barred. We previously remanded this case to the district court
to determine when Graham submitted his notice of appeal to prison
authorities for mailing. The district court determined that

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No. 03-21098
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Graham’s notice of appeal was submitted for mailing on October
29, 2003. Graham does not challenge this finding. The last day
for filing a timely notice of appeal was October 27, 2003. See
FED. R. APP. P. 4(a); FED. R. APP. P. 26(a)(3). Because the
notice of appeal is untimely, we dismiss Graham’s appeal for lack
of jurisdiction and deny his motion for a COA as moot. See
United States v. Garcia-Machado, 845 F.2d 492, 493 (5th Cir.
1988).
APPEAL DISMISSED; COA DENIED AS MOOT.

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