                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 02-40493
                          Summary Calendar



THOMAS E. SIMMONS,

                                     Petitioner-Appellant,

versus

JANIE COCKRELL, 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. C-00-CV-170
                      --------------------
                          March 7, 2003

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Thomas E. Simmons, Texas prisoner #379918, appeals the

district court’s denial of his 28 U.S.C. § 2254 petition, in

which he challenged his disciplinary conviction for threatening

an officer.    He argues that the district court erred in denying

his claim that the disciplinary charge was brought in retaliation




     *
        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that this opinion should not be published and is not precedent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. 02-40493
                                -2-

for his having filed an Americans With Disabilities Act (“ADA”)

lawsuit against the prison.

     The respondent’s challenges to this court’s jurisdiction are

without merit.   The district court did not abuse its discretion

in granting Simmons’ motion to reopen because the conditions set

forth in FED. R. APP. P. 4(a)(6) were satisfied.   See In re

Jones, 970 F.2d 36, 39 (5th Cir. 1992).   Contrary to the

respondent’s contentions, notice to counsel of the entry of

judgment was insufficient under the circumstances of this case,

and Simmons himself was entitled to notice of the entry of

judgment as required by FED. R. APP. P. 4(a)(6)(B).

     Although under 28 U.S.C. § 2253(c)(3), an order granting a

certificate of appealability (COA) must specify the issue or

issues on which the applicant has made a substantial showing of

the denial of a constitutional right, a limited exception to this

requirement “applies where the petitioner presented only one

issue to the district court.”   See Muniz v. Johnson, 114 F.3d 43,

45 n.1 (5th Cir. 1997)(citing Else v. Johnson, 104 F.3d 82, 83

(5th cir. 1997)).   As Simmons points out, the only claim to

survive summary judgment and on which the district court ordered

an evidentiary hearing was Simmons’ retaliation claim.   In his

reply brief, Simmons states that he has waived “all claims but

the retaliation claim” and that the retaliation claim “is the

sole subject of the instant appeal.”   Based on the foregoing,

this court declines to remand and construes the district court’s
                           No. 02-40493
                                -3-

order granting COA as directed to Simmons’ retaliation claim.

See Muniz, 114 F.3d at 45 n.1; Else, 104 F.3d at 83.

     Contrary to Simmons’ contentions, the testimony offered at

the evidentiary hearing does not support his retaliation claim,

but supports the district court’s dismissal of the claim.    The

testimony established that there is no dispute that Simmons made

statements to Curtis; that those statements included references

to Nagle and suggested that other prison officers would face the

same fate as Nagle; and that Simmons made these statements two

weeks after Nagle was killed, when a zero tolerance policy for

such statements was in place at the prison.   In light of the

foregoing, the magistrate judge’s and district court’s finding

that Simmons did not present evidence establishing a retaliation

claim, but “at most [Simmons] ha[d] shown that officials

overreacted to his comments” was not clearly erroneous.     See

Clarke v. Stalder, 121 F.3d 222, 231-32 (5th Cir. 1997), vacated

on other grounds, 154 F.3d 186 (5th Cir. 1998)(en banc).

     Although Simmons asserts that the disciplinary charge was

“false” based on Curtis’ testimony that she believed a lesser

offense would have been more appropriate, Curtis confirmed at the

evidentiary hearing that Simmons made the statement set forth in

her offense report.   The district court previously concluded

that, based on the statement in the offense report, “some

evidence” supported Simmons’ conviction for threatening an

officer.   See Superintendent, Mass. Correctional Inst., Walpole
                           No. 02-40493
                                -4-

v. Hill, 472 U.S. 445, 455 (1985).   Simmons does not challenge

this specific finding.

     Although Simmons asserts numerous arguments in support of

his assertion that he presented a “chronology of events”

establishing a retaliation claim, he presents no sound basis for

disturbing the magistrate judge’s and district court’s findings

that the “chronology of events” he presented did not compel a

finding of retaliation.   See Clarke, 121 F.3d at 232.

     Based on the foregoing, the district court’s judgment

denying Simmons’ 28 U.S.C. § 2254 petition is AFFIRMED.
