IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30619 Summary Calendar

KENNETH R. ALEXANDER,

Petitioner-Appellant,

versus

WARDEN, ALLEN CORRECTIONAL CENTER,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 98-CV-569 --------------------

December 28, 1999

Before GARWOOD, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*

Kenneth R. Alexander, Louisiana prisoner # 122967, appeals

the district court’s dismissal of his petition for habeas relief

as time-barred pursuant to

(d). Alexander

contends that because he has raised a claim of actual innocence,

the Suspension Clause bars dismissal of his habeas petition on

limitations grounds. This challenge is not properly before this

court. The district court did not grant a certificate of

appealability (COA) on this issue and Alexander did not request

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-30619 -2-

that this court issue COA. See Lackey v. Johnson,

(5th Cir. 1997); cf. United States v. Kimler,

(5th Cir. 1998).

Alexander also maintains that the district court erred in

determining that his final state application for postconviction

relief, the sixth filed in the trial court, did not toll the

running of the limitations period as is stated in § 2244(d)(2).

This assertion is correct pursuant to Villegas v. Johnson,

(5th Cir. 1999). However, this court can affirm

the ruling of the district court on an alternate ground. See

Sojourner T v. Edwards,

(5th Cir. 1992). Even if

the time during which Alexander’s fifth and sixth postconviction

filings in the state were tolled, Alexander’s federal habeas

petition was filed after the one-year limitations period had run.

As a result, the decision of the district court is AFFIRMED.