Randall Jordan v. Lorie Davis, Director

Case: 17-50032 Document: 00514177941 Page: 1 Date Filed: 09/29/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-50032 FILED
September 29, 2017
Lyle W. Cayce
Clerk
RANDALL SCOTT JORDAN,
Petitioner−Appellant,
versus
LORIE DAVIS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent−Appellee.
Appeal from the United States District Court
for the Western District of Texas
No. 1:14-CV-1149
No. 1:14-CV-1150
No. 1:14-CV-671
Before JOLLY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Randall Jordan, Texas prisoner #1672271, seeks a certificate of appeal-
ability (“COA”) from the denial of a motion under Federal Rule of Civil
Procedure 60. No COA is required, however, because Jordan seeks to challenge
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50032 Document: 00514177941 Page: 2 Date Filed: 09/29/2017
No. 17-50032
only the district court’s ruling that he failed to file a timely notice of appeal
after the dismissal of his 28 U.S.C. § 2254 petition. See Ochoa Canales v. Quar-
terman, 507 F.3d 884, 888 (5th Cir. 2007); Dunn v. Cockrell, 302 F.3d 491, 492
n.1 (5th Cir. 2002).
The denial of the Rule 60 motion is reviewed for abuse of discretion. See
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981).
Jordan asserts that the district court lacked jurisdiction to consider the time-
liness of the notice of appeal because this court never authorized it to correct a
clerical mistake under Rule 60(a). Aside from Rule 60(a)’s having no applica-
bility under the circumstances, jurisdiction was never conferred on this court,
so the district court was never deprived of jurisdiction, because we dismissed
the appeal for lack of jurisdiction on account of the absence of a timely notice
of appeal. See Bowles v. Russell, 551 U.S. 205, 214 (2007) (holding that a timely
notice of appeal is a jurisdictional requirement in a § 2254 case); Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (noting the general
jurisdictional effects of a timely notice of appeal).
More significantly, our dismissal of No. 16-50019 for lack of a timely
notice of appeal is the law of the case. See Fuhrman v. Dretke, 442 F.3d 893,
897 (5th Cir. 2006). In addition, a Rule 60 motion may not be used to circum-
vent the time limits for appealing, especially where the motion was made after
the time for seeking an extension of time for appeal has expired. See Dunn,
302 F.3d at 492−93; see also Perez v. Stephens, 745 F.3d 174, 177−79 (5th Cir.
2014).
Accordingly, the motion for a COA is DENIED as unnecessary. The
order denying Rule 60 relief is AFFIRMED.
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