                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                              No. 99-41323


                          PEDRO A. RAMIREZ,

                                                    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
                           (B-97-CV-230)

                          July 19, 2001
Before KING, Chief Judge, BARKSDALE, Circuit Judge, and NOWLIN,1

District Judge.

PER CURIAM:2

     In   1988,   following   a   guilty   plea,   Pedro   A.   Ramirez   was

sentenced to four years imprisonment; the Texas Court of Criminal

Appeals affirmed his sentence in 1989.             On 19 September 1996,

Ramirez filed a petition for writ of mandamus, pursuant to Texas

Rule of Appellate Procedure 121, in a Texas trial court.                  (The

version of Texas Rule of Appellate Procedure 121 applicable at the


     1
      District Judge of the Western District of Texas, sitting by
designation.
     2
      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this opinion should not be published and is not precedent except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.
time stated: “An original proceeding for a writ of mandamus ... in

an appellate court shall be commenced by delivering to the clerk of

the court” a motion for leave to file the petition and the

petition.   (Emphasis added.))       The trial court construed the

mandamus petition as an application for writ of habeas corpus and,

on 8 November 1996, recommended that it be denied.   On 26 February

1997, without written order, the Texas Court of Criminal Appeals,

apparently declining to accept the trial court’s characterization

of Ramirez’s mandamus petition as a habeas petition, denied Ramirez

“leave to file” an “application for writ of mandamus”.

     Following the district court’s denial of both habeas relief

and a certificate of appealability (COA), our court granted a COA

on “whether the district court properly dismissed [Pedro A.]

Ramirez’s § 2254 petition as time-barred”. Ramirez v. Johnson, No.

99-41323 (5th Cir. 2 May 2000) (order granting COA).

     Having considered the briefs, pertinent parts of the record,

the report and recommendation of the magistrate judge, and the

district court’s dismissal of the habeas petition pursuant to that

recommendation, we agree that Ramirez’s petition for writ of

mandamus was not “a properly filed application for State post-

conviction or other collateral review” pursuant to 28 U.S.C. §

2244(d)(2) and, therefore, did not toll the period for filing his

federal habeas petition.   The denial of habeas relief is

                                                       AFFIRMED.


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