Don Williams v. Lorie Davis, Director , 713 F. App'x 354 ( 2018 )

Case: 17-10674 Document: 00514361704 Page: 1 Date Filed: 02/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10674
Fifth Circuit
FILED
February 26, 2018
DON ALFONSO WILLIAMS, Lyle W. Cayce
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 Northern District of Texas
USDC No. 3:14-CV-4504
USDC No. 3:14-CV-4505
USDC No. 3:14-CV-4506
Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Don Alfonso Williams, Texas prisoner # 01786481, is serving 50-year
concurrent terms in prison for murder and each of two aggravated robbery
convictions. Williams filed an unsuccessful 28 U.S.C. § 2254 petition
challenging his convictions. He subsequently filed a motion pursuant to
Federal Rule of Civil Procedure 60(b)(3) and (b)(4), seeking relief from the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10674 Document: 00514361704 Page: 2 Date Filed: 02/26/2018
No. 17-10674
denial of his § 2254 petition on the basis of a void judgment and fraud,
misrepresentation, or misconduct. The district court denied the motion.
Williams now seeks a certificate of appealability (COA) to appeal the district
court’s denial of his Rule 60(b) motion.
Before he can appeal the denial of his motion under Rule 60(b), Williams
must obtain a COA. See Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th
Cir. 2007). The district court did not determine whether Williams was entitled
to a COA. Because the district court has not issued a COA ruling, we assume
without deciding that we lack jurisdiction over the appeal. See Rule 11(a),
RULES GOVERNING § 2254 PROCEEDINGS; Cardenas v. Thaler, 651 F.3d 442,
443-44 & nn.1-2 (5th Cir. 2011). Nevertheless, we decline to remand this case
to the district court for a COA ruling because the appeal is frivolous and a
remand would be futile. See United States v. Alvarez, 210 F.3d 309, 310 (5th
Cir. 2000).
In the alternative, even if we have jurisdiction over the appeal absent a
COA ruling in the district court, we would deny a COA. To obtain a COA,
Williams must establish that reasonable jurists would debate that the district
court abused its discretion in denying the Rule 60(b) motion. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Hernandez v. Thaler, 630 F.3d 420, 428
(5th Cir. 2011). He has failed to make the required showing.
Accordingly, the appeal is DISMISSED for lack of jurisdiction, and
Williams’s motion for a COA is DENIED AS MOOT.
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