Rojas-Meliton v. Lumpkin ( 2023 )

Case: 23-20308 Document: 00516964092 Page: 1 Date Filed: 11/10/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 10, 2023
No. 23-20308
____________ Lyle W. Cayce
Clerk
Jose Rojas-Meliton,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-537
______________________________
Before Smith, Southwick, and Wilson, Circuit Judges.
Per Curiam:*
Jose Rojas-Meliton, Texas prisoner # 02149143, was convicted of
aggravated sexual assault of a child. He currently appeals the district court’s
denial of his motion under Federal Rule of Appellate Procedure 4(a)(6) to
reopen the appeal period for the denial of his 28 U.S.C. § 2254 application.
Because Rojas-Meliton’s motion to reopen was filed under Rule
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-20308 Document: 00516964092 Page: 2 Date Filed: 11/10/2023
No. 23-20308
4(a)(6), his motion for a certificate of appealability is DENIED as unneces-
sary. See Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007);
Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002). We dispense with fur-
ther briefing because this appeal may be resolved on the available record.
The district court did not abuse its discretion when it denied Rojas-
Meliton’s motion to reopen. See In re Jones, 970 F.2d 36, 39 (5th Cir. 1992).
Rojas-Meliton does not satisfy Rule 4(a)(6)(A) because his counsel received
notice of the denial of his application within 21 days of judgment. See Perez
v. Stephens, 784 F.3d 276, 283 (5th Cir. 2015). Additionally, we reject Rojas-
Meliton’s argument that his counsel abandoned him and that such abandon-
ment warranted an exception to Rule 4(a)(6)(A)’s strictures. See id. at 283–
84; Resendiz v. Dretke, 452 F.3d 356, 361–62 (5th Cir. 2006); see also Bowles v.
Russell, 5511 U.S. 205, 208, 214 (2007).
The denial of the motion to reopen is AFFIRMED.
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