Dillard v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 28, 2007
Charles R. Fulbruge III
Clerk
No. 07-20144
Summary Calendar
CLINTON DILLARD,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-3823
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Clinton Dillard, Texas prisoner # 769921, moves this court for
a certificate of appealability (COA) to appeal the denial of a FED.
R. CIV. P. 60(b) motion. Dillard initially filed a 28 U.S.C. § 2254petition in 2004 challenging his 1996 murder conviction. The
district court dismissed the petition as barred by the one-year
limitations period of 28 U.S.C. § 2244(d). Dillard then filed his
Rule 60(b) motion for relief from the judgment dismissing his §
2254 petition as time-barred.
*
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this opinion should not be published and is not precedent except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. 07-20144
-2-
Dillard 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 challenged the district court’s
determination that his § 2254 petition should be dismissed as time
barred. Therefore, as Dillard argues, a COA is not necessary, and
this court has jurisdiction to consider the arguments presented in
his Rule 60(b) motion. 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.
Dillard contends that he is entitled to relief from the
judgment because the district court, in determining that his §
2254 petition should be dismissed as time-barred, rendered its
judgment in a manner inconsistent with due process, and in
violation of 28 U.S.C. § 2243. He notes that the district court
dismissed his § 2254 petition on its own motion.
Although the district court did not provide “fair notice and
an opportunity for the parties to present their positions,” Day v.
McDonough, 126 S. Ct. 1675, 1684 (2006), prior to dismissing the §
2254 petition as time-barred, the record reflects that Dillard
utilized a FED. R. CIV. P. 59(e) to challenge the district court’s
ruling and to fully address the limitations issue. Dillard has not
shown that the district court abused its discretion in denying his
Rule 60(b) motion. See Warfield v. Byron, 436 F.3d 551, 555 (5th
No. 07-20144
-3-
Cir. 2006); Simmons v. Reliance Standard Life Ins. Co. of Texas,
310 F.3d 865, 870 n.4 (5th Cir. 2002).
Dillard also contends that he is entitled to Rule 60(b) relief
because the district court, in denying his Rule 59(e) motion,
inaccurately characterized his constitutional challenges to the
one-year limitations period of 28 U.S.C. § 2244(d) as “foreclosed.”
Even if the creative constitutional arguments raised by Dillard had
not been directly foreclosed by previous decisions, Dillard has
failed to show that the district court’s denial of his Rule 60(b)
motion was an abuse of discretion. See Warfield, 436 F.3d at 555;
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).
AFFIRMED.