Wilson v. Waller ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 26, 2007
Charles R. Fulbruge III
Clerk
No. 06-60881
Summary Calendar
WILLIAM ANTONIO WILSON,
Petitioner-Appellant,
versus
DOLAN WALLER, Warden Wilkinson County Correctional Facility;
CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:04-CV-811
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
William Antonio Wilson, Mississippi prisoner # R6861, moves
this court for a certificate of appealability (COA) to appeal the
denial of a FED. R. CIV. P. 60(b) motion. Wilson initially filed
a 28 U.S.C. § 2254 petition challenging his convictions for
murder and aggravated assault. The district court dismissed the
petition as barred by the one-year limitations period of 28
U.S.C. § 2244(d). Wilson then filed his Rule 60(b) motion for
*
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this opinion should not be published and is not precedent except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. 06-60881
-2-
relief from the judgment dismissing his § 2254 petition as time
barred.
Wilson did not attempt to use his Rule 60(b) motion to add a
new habeas claim or to attack the federal court’s resolution of a
claim on the merits; he instead asserted that the district
court’s determination that his § 2254 petition was time barred
was incorrect. Therefore, a COA is not necessary. See Gonzalez
v. Crosby, 545 U.S. 524, 532 & n.4 (2005; 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.
Wilson argues that the district court’s denial of his Rule
60(b) motion was an abuse of discretion. Relying on the
affidavit of his sister, which he contends is newly discovered
evidence, Wilson argues that he is entitled to equitable tolling
of the limitations period because the failure of his retained
attorney to file a post-conviction motion resulted in his § 2254
petition being untimely.
Wilson’s contention that he is entitled to equitable tolling
due to the failure of his attorney to file his state habeas
petition is unavailing. This court has previously rejected such
an argument. See Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.
2002) (“mere attorney error or neglect is not an extraordinary
circumstance such that equitable tolling is justified”); Salinas
v. Dretke, 354 F.3d 425, 432 (5th Cir. 2004) (same).
No. 06-60881
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Wilson has failed to show that the district court abused its
discretion in denying his Rule 60(b) motion. See Warfield v.
Byron, 436 F.3d 551, 555 (5th Cir. 2006). Accordingly, the
district court’s denial of Rule 60(b) relief is affirmed. See
id.MOTION FOR COA DENIED AS UNNECESSARY; AFFIRMED.