     Case: 11-20500       Document: 00512406861         Page: 1     Date Filed: 10/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 15, 2013

                                     No. 11-20500                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



LUIS RAMON DELEON,

                                                  Petitioner-Appellant
v.

WILLIAM STEPHENS, 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. 4:11-CV-2047


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Luis Ramon Deleon, Texas prisoner # 1204504, was convicted of capital
murder in 2003 and sentenced to life in prison. His probation for an unrelated
drug case was also revoked, and he was sentenced to ten years. In May 2011,
after the state court denied habeas relief, Deleon filed a 28 U.S.C. § 2254 petition
challenging the murder conviction, although he also referenced the drug


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-20500     Document: 00512406861      Page: 2   Date Filed: 10/15/2013



                                  No. 11-20500

conviction. Before the state was served and filed an answer, the district court
sua sponte dismissed the petition as time-barred, reasoning that both convictions
became final long before Deleon filed for either state or federal relief. Deleon
appeals.
      Our appellate jurisdiction is limited to the issue upon which a certificate
of appealability (“COA”) was granted, see Lewis v. Thaler, 701 F.3d 783, 787 (5th
Cir. 2012), which in this case is “whether the district court erred in sua sponte
dismissing the application as time barred without giving Deleon notice or an
opportunity to respond.” Deleon does not address the propriety of the district
court’s sua sponte action nor his opportunity to respond, and the issue is
therefore abandoned. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993);
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Instead, virtually all of Deleon’s appellate brief is devoted to arguing the
merits of his claim that his capital murder conviction was obtained in violation
of the constitution due to, inter alia, ineffective assistance of counsel and
prosecutorial misconduct. We do not consider these arguments. See Carty v.
Thaler, 583 F.3d 244, 266 (5th Cir. 2009) (“Because neither we nor the district
court granted Carty a COA on this issue, we lack jurisdiction to consider this
claim.”).
      Deleon makes only passing references to the district court’s application of
the statute of limitations. To the extent these preserved appellate review, we
note that although the district court did not give Deleon explicit notice of the
limitations issue prior to dismissal, see Day v. McDonough, 547 U.S. 198, 210,
126 S. Ct. 1675, 1684 (2006), Deleon acknowledged in his § 2254 petition that his
habeas claims were filed more than one year after his conviction became final,
and he set forth his arguments against application of limitations. Cf. Dillard v.
Quarterman, 237 F. App’x. 940, 941 (5th Cir. 2007). The district court addressed



                                        2
    Case: 11-20500     Document: 00512406861     Page: 3   Date Filed: 10/15/2013



                                  No. 11-20500

those arguments, the state has not waived application of the time bar, and we
perceive no error in the district court’s conclusions.
      The district court’s judgment is therefore AFFIRMED.




                                        3
