                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT



                                  No. 00-41158
                                Summary Calendar



WILLIAM ESPINOZA PENA,

                                                     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. M-98-CV-147
                             --------------------
                                 May 14, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

       William Espinoza Pena (“Pena”) appeals the denial of his 28

U.S.C. § 2254 petition as time-barred. He argues that the district

court erred in refusing to apply the equitable-tolling doctrine to

toll       the   limitations   period   during   a    time   when   he   had   been

judicially declared incompetent.



       *
      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this opinion should not be published and is not precedent except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.

                                         1
       The decision whether to apply the equitable-tolling doctrine

is reviewed for an abuse of discretion.                   Fisher v. Johnson, 174

F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164 (2001).

Pena       bears   the   burden    of   proving    that    his     mental    condition

prevented him from pursuing his legal rights.                       See Phillips v.

Donnelly, 216 F.3d 508, 511 (5th Cir. 2000); see also Fisher, 174

F.3d at 715.

       We rescind as improvidently granted the order granting the

Respondent’s        motion   to    supplement      the    record    on    appeal    with

evidence not presented to the district court of Pena’s mental

condition.         See Leonard v. Dixie Well Service & Supply, Inc., 828

F.2d 291, 296 (5th Cir. 1987) (“When parties produce on appeal

evidence never presented in any form to the district court, this

court will not admit the evidence.”) Thus, in reviewing this case,

we will only consider the evidence presented to the district court.

       The record evidence shows that Mr. Pena had mental health

problems and was adjudged in a 1993 state court civil proceeding to

be incapable of handling his financial affairs.1                   However, there is

also evidence         in   the    record   which    indicates      that     Mr.   Pena’s

condition did not prevent him from pursuing his habeas rights

during the relevant time period, April 24, 1996 through April 24,

1997.        Consequently,        the   district    court    did     not    abuse    its


       1
       In 1998, the same court declared Pena to be competent to
handle his financial affairs and revoked the trust that had been
established on his behalf.

                                           2
discretion in determining that equitable tolling was unwarranted in

this instance.   The denial of Pena’s habeas petition is therefore

AFFIRMED.    To the extent that Pena argues that the 292 days that

his 1998 petition was pending before the district court after he

was declared competent should also be equitably tolled, COA was not

granted on this issue.    We therefore do not consider it.          See 28

U.S.C. § 2253(c)(1)(A).

     AFFIRMED;    order   granting       motion   to   supplement   record

RESCINDED.




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