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finding counsel was not ineffective for failing to challenge jurors who had stated that they or their family members had been victims of similar offenses, given their assurance that they could be fair
Summary of this case from Buckner v. DavisOpinion
No. 06-40817 Summary Calendar.
February 14, 2007.
Donte Ramone Green, Lovelady, TX, pro se.
Gretchen Berumen Merenda, Assistant Attorney General, Austin, TX, for Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of Texas (4:02-CV-342).
Before SMITH, WIENER, and OWEN, Circuit Judges.
Petitioner-Appellant Donte Ramone Green, Texas prisoner # 894464, seeks a certificate of appealability (COA) to appeal the denial of a FED.R.CIV.P. 60(b) motion. Green initially filed a 28 U.S.C. § 2254 petition challenging his conviction for robbery. The district court dismissed the petition as untimely, but Green failed to receive timely notice of the dismissal. Green subsequently moved for an out-of-time appeal based on his failure to receive notice, but the district court denied the motion as untimely. Green eventually filed the instant Rule 60(b) motion for relief from the order denying his motion for an out-of-time appeal.
As Green is not attempting to use the Rule 60(b) motion to alter the judgment in his underlying habeas petition, but instead is seeking relief from the denial of his motion for an out-of-time appeal, a COA is not necessary. See Dunn v. Cockrell, 302 F.3d 491, 492 n. 1 (5th Cir. 2002); 28 U.S.C. § 2253(c)(1). Accordingly, the motion for a COA is denied as unnecessary.
Nevertheless, Green's appeal is unavailing. He contends that the district court failed to explain adequately its reasons for denying Rule 60(b) relief. Giving Green the benefit of liberal construction, we perceive that he also contends that the district court abused its discretion by failing to investigate why the notice of dismissal was returned to the court and by failing to apply equitable tolling to permit Green to appeal the dismissal. Green essentially attempts to reargue claims he made in his motion for an out-of-time appeal. That motion was previously presented to this court, and we held that the district court was without authority to extend the appeal period. See Green v. Dretke, No. 04-41263 (5th Cir. Nov. 3, 2004); see also FED. R.APP. P. 4(a)(6). Green has failed to show that the district court's denial of Rule 60(b) relief was so unwarranted as to constitute an abuse of discretion. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). Accordingly, the district court's denial of Rule 60(b) relief is affirmed. See id.
MOTION FOR COA DENIED AS UNNECESSARY; AFFIRMED.