Overbey v. Cain ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30458
Summary Calendar
JOHN LEWIS OVERBEY,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(00-CV-2524)
_________________________________________________________________
November 5, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
John Lewis Overbey (Overbey), Louisiana prisoner #371690,
appeals the dismissal of his 28 U.S.C. § 2254 habeas petition. Our
court granted a certificate of appealability (COA) on whether that
federal application was time-barred. Overbey v. Cain, No. 01-30458
(5th Cir. 18 June 2001) (unpublished). We granted the COA because
it was unclear, based upon the appellate record, when Overbey filed
his first application for state postconviction relief.
Overbey states he did not file such an application prior to
June 1999. That application was filed after the Antiterrorism and
Effective Death Penalty Act’s (AEDPA) one-year limitation period
*
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this opinion should not be published and is not precedent except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.
had expired (at the latest, it expired in May 1999), and it
therefore had no suspensive effect. See § 2244(d)(1)(A) & (2). In
short, the federal application, at the latest, should have been
filed in May 1999; it was not filed until late 2000. Therefore,
the application was time-barred.
Overbey’s brief, liberally construed, contends that AEDPA’s
limitation period should not begin to run until after the
exhaustion of state remedies and/or that the period should not
apply when an application for state postconviction relief is
properly filed. These contentions are without merit. See Villegas
v. Johnson, 184 F.3d 467, 472 (5th Cir. 1999); Flanagan v. Johnson,
154 F.3d 196, 199 n.1 (5th Cir. 1998); see also Williams v. Cain,
217 F.3d 303 (5th Cir. 2000).
Finally, we decline to address Overbey’s equitable tolling
argument. This issue was not raised in district court; in
addition, it is beyond the scope of his COA. See Whitehead v.
Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998).
AFFIRMED