                                                                                          United States Court of Appeals
                                                                                                   Fifth Circuit
                                                                                                 F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                               September 27, 2006
                                   FOR THE FIFTH CIRCUIT
                                                                                            Charles R. Fulbruge III
                                                                                                    Clerk


                                            No. 04-30985
                                          Summary Calendar


UNITED STATES OF AMERICA,

                                                                                            Plaintiff-
                                                           Appellee,

                                                  versus

JOSE ESTRADA-AGUIRRE,

                                                                                      Defendant-
                                                           Appellant.

                     ------------------------------------------------------------------
                            Appeal from the United States District Court
                                  for the Middle District of Louisiana
                                       USDC No. 3:03-CV-266-C
                                     USDC No. 3:99-CR-3-C-ALL
                      -----------------------------------------------------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

       Jose Estrada-Aguirre moves for a certificate of appealability (COA) to appeal from the denial

of his 28 U.S.C. § 2255 motion as time-barred. Estrada-Aguirre challenges his conviction of illegally

reentering the United States following a previous deportation.




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       Estrada-Aguirre also filed a notice of appeal from the district court’s denial of relief pursuant

to FED. R. CRIM. P. 33. He has not evinced a desire to pursue an appeal of the denial of the Rule 33

denial, despite having been given an opportunity to submit a brief. He has, therefore, waived that

appeal. As to the Rule 33 denial, Estrada-Aguirre’s appeal is dismissed.

       Estrada-Aguirre contends that appellate counsel failed to notify him of this court’s judgment

on direct appeal, preventing him from knowing that the one-year limitations period for seeking § 2255

relief had begun to run. A COA may be issued only if Estrada-Aguirre has made a substantial

showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). When the district court has denied habeas relief on procedural grounds,

the movant must show that “jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). Estrada-Aguirre has failed to show that jurists of reason would find it debatable whether

the district court’s procedural ruling was correct. His COA motion therefore is denied.

       COA DENIED; APPEAL DISMISSED AS TO DENIAL OF FED. R. CRIM. P. 33 MOTION.
