                             No. 99-40726
                                  -1-

                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                              No. 99-40726
                          Conference Calendar



WILLIAM STANLEY FRY,

                                            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
                         USDC No. G-98-CV-196
                         --------------------
                            April 12, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Texas prisoner William Stanley Fry, through counsel,

challenges the district court’s dismissal of his 28 U.S.C. § 2254

habeas corpus petition as time-barred, pursuant to 28 U.S.C.

§ 2244(d).     Specifically, he contends that the district court

erred in failing to conclude that the limitations period was

tolled, pursuant to § 2244(d)(2), during the 90-day period in

which he could have sought a writ of certiorari from the United



     *
        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that this opinion should not be published and is not precedent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. 99-40726
                                   -2-

States Supreme Court.      His argument is without merit.   See Ott v.

Johnson, 192 F.3d 510, 513 (5th Cir. 1999).**

     Fry has abandoned his argument that the limitations period

should have been equitably tolled during the pendency of his

unsuccessful motions for leave to file an untimely petition for

discretionary review and during the time he could have sought

reconsideration of those denials.      See Yohey v. Collins, 985 F.2d

222, 224-25 (5th Cir. 1993).      He argues instead, for the first

time on appeal, the limitations period should have been tolled

during the time he could have sought reconsideration of the state

appellate court’s denial of his habeas application.      Fry moves to

have the question certified to the Texas Court of Criminal

Appeals.   Because the argument is raised for the first time on

appeal, we will not consider it.      See Leverette v. Louisville

Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).      The motion to

certify questions to the Texas Court of Criminal Appeals is

DENIED.

     Fry’s appeal is without arguable merit and is therefore

DISMISSED.   See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.

     APPEAL DISMISSED; MOTION DENIED.




     **
       This decision was rendered after the district court
granted a certificate of appealability in the instant case.
