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Ricky Barnett v. Lorie Davis, Director , 698 F. App'x 239 ( 2017 )


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  •      Case: 16-41193      Document: 00514189651         Page: 1    Date Filed: 10/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41193                                FILED
October 10, 2017
Lyle W. Cayce
RICKY ALLEN BARNETT,                                                              Clerk
Petitioner-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CV-167
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Ricky Allen Barnett, Texas prisoner # 01541732, moves for a certificate
of appealability (COA) and leave to proceed in forma pauperis (IFP) on appeal
of the district court’s denial of his motion to reopen the appeal period pursuant
to Rule 4(a)(6) of the Federal Rules of Appellate Procedure. Rule 4(a)(6) is
permissive and compliance with Rule 4(a)(6) does not require the district court
to grant the motion, we review the district court’s denial of the motion for an
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-41193    Document: 00514189651      Page: 2   Date Filed: 10/10/2017
No. 16-41193
abuse of discretion. See In re Jones,
    970 F.2d 36
    , 39 (5th Cir. 1992). Barnett
did not file his motion to reopen the appeal period within 180 days of the entry
of the judgment or within 14 days after he received notice of the judgment and
thus did not satisfy the requirements of Rule 4(a)(6)(2).      Accordingly, the
district court’s denial of the motion was not an abuse of discretion. Rodriguez
v. Johnson,
    104 F.3d 694
    , 696 (5th Cir. 1997).
The motion for a COA is DENIED AS UNNECESSARY. See Ochoa
Canales v. Quarterman,
    507 F.3d 884
    , 888 (5th Cir. 2007); Dunn v. Cockrell,
    302 F.3d 491
    , 492 (5th Cir. 2002). Even if a COA were required, Barnett has
not shown that one should issue. See Slack v. McDaniel,
    529 U.S. 473
    , 484
(2000).
He also has not shown that there is a nonfrivolous issue for appeal
concerning the denial of his motion to reopen. See Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir. 1982). Barnett’s motion for IFP is DENIED. As there is no
nonfrivolous issue for appeal, the appeal is DISMISSED AS FRIVOLOUS. See
Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983); 5TH CIR. R. 42.2.
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