                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   May 9, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-50234
                           Summary Calendar



BART CASTRO

                       Petitioner - Appellant

     v.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION

                       Respondent - Appellee

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                        USDC No. A-03-CV-270-SS
                          --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Following a jury trial, Bart Castro, Texas prisoner number

842522, was convicted of murder and sentenced to serve 55 years

in prison.     Castro file a 28 U.S.C. § 2254 habeas corpus petition

to challenge this conviction, and the district court dismissed

his habeas corpus petition as untimely.       This court granted

Castro a certificate of appealability on the issue whether he

should receive statutory and equitable tolling for the period

that his first state habeas application, which was returned to

     *
       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this opinion should not be published and is not precedent except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. 04-50234
                                  -2-

him because it was not in the proper form, was pending.    The

instant appeal ensued.

     Castro has not shown that he was prevented from timely

filing a 28 U.S.C. § 2254 petition due to exceptional

circumstances that were out of his control or because he was

affirmatively misled.     See Felder v. Johnson, 204 F.3d 168,

170-71 (5th Cir. 2000); Ott v. Johnson, 192 F.3d 510, 514 (5th

Cir. 1999).   He likewise has not established that he diligently

pursued relief.   See Coleman v. Johnson, 184 F.3d 398, 403 (5th

Cir. 1999).   Consequently, Castro has not shown that the district

court abused its discretion in determining that he was not

entitled to equitable tolling.     See Fisher v. Johnson, 174 F.3d

710, 713 (5th Cir. 1999).

     Castro also has not shown that his failure to timely file

his 28 U.S.C. § 2254 petition was due to a state-created

impediment that implicated the Constitution or other federal law.

See 28 U.S.C. § 2244(d)(1)(B); Egerton v. Cockrell, 334 F.3d 433,

438-39 (5th Cir. 2003).    He thus has not established that he is

entitled to statutory tolling.    He likewise has not shown that

the district court erred in dismissing his 28 U.S.C. § 2254

habeas corpus petition as untimely.    The judgment of the district

court is AFFIRMED.
