                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                      July 8, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             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


     *
       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this opinion should not be published and is not precedent except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. 03-21098
                                -2-

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.
