IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20579 Conference Calendar

EUGENIO MARTINEZ,

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. H-99-CV-1611 - - - - - - - - - - April 10, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Eugenio Martinez, Texas prisoner #681389, obtained a

certificate of appealability to appeal the district court’s

dismissal of his

petition on the sole issue

whether he had failed to exhaust his state remedies. Martinez

argues that he filed this third state habeas petition after the

Texas First Court of Appeals affirmed his conviction. Martinez

also argues that his counsel was ineffective. The latter issue

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20579 -2-

is not before the court. Lackey v. Johnson,

(5th Cir. 1997).

This court reviews the district court’s determinations of

law de novo and its findings of facts for clear error. Emery v.

Johnson,

(5th Cir. 1997). Martinez filed his

third state habeas petition before the mandate issued in his

direct appeal. Because the direct appeal was not yet final, the

Texas Court of Criminal Appeals was without jurisdiction to

consider Martinez’s state habeas application. Ex parte Johnson,

(Tex. Crim. App. 2000). Martinez failed to

present his claims in a procedurally proper manner under state

law. He therefore failed to exhaust his available state

remedies. Mercadel v. Cain,

(5th Cir. 1999).

Accordingly, the judgment of the district court dismissing the

petition for failure to exhaust is

AFFIRMED.