Case: 12-30236 Document: 00511953325 Page: 1 Date Filed: 08/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 10, 2012
No. 12-30236
Summary Calendar Lyle W. Cayce
Clerk
PAUL ROBERTS, JR.,
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 1:10-CV-995
Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Paul Roberts, Jr., Louisiana prisoner # 450517, moves for a certificate of
appealability (COA) to appeal the district court’s denial of his motion to reopen
the time to file an appeal from the denial of his 28 U.S.C. § 2254 application
challenging his 2005 convictions for second degree murder, attempted second
degree murder, possession of a firearm by a convicted felon, and possession with
intent to distribute marijuana. A COA is not required to appeal the denial of a
Federal Rule of Appellate Procedure 4(a)(5) or 4(a)(6) motion. See Ochoa
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30236 Document: 00511953325 Page: 2 Date Filed: 08/10/2012
No. 12-30236
Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007); Dunn v. Cockrell, 302
F.3d 491, 492 (5th Cir. 2002). Accordingly, Roberts’s COA motion is DENIED
as unnecessary.
Roberts contends that district court abused its discretion in denying his
motion to reopen the time to file an appeal from the denial of his § 2254
application. Because his motion was filed after this court dismissed his appeal
as untimely, see Roberts v. Cain, No. 11-31138 (5th Cir. Jan. 4, 2012)
(unpublished), this court’s prior determination that it lacked jurisdiction to
consider the appeal is binding under the law of the case doctrine and should not
be revisited here, see Fuhrman v. Dretke, 442 F.3d 893, 896-97 (5th Cir. 2006).
Further, Roberts has not shown that the district court abused its
discretion in denying his motion. Because his motion was filed more than 60
days after the entry of judgment, it was untimely for purposes of Rule 4(a)(5).
See FED. R. APP. P. 4(a)(5)(A)(i). Further, although Roberts’s motion was filed
within 180 days after the entry of judgment, it was filed more than 14 days after
November 7, 2011, the date upon which he received notice of the judgment.
Therefore, his motion was also untimely for purposes of Rule 4(a)(6), see FED. R.
APP. P. 4(a)(6)(B), and the district court was powerless to reopen the time for
filing a notice of appeal, see Resendiz v. Dretke, 452 F.3d 356, 360 (5th Cir. 2006).
Finally, Roberts has not shown that the district court had a duty to notify him
that his notice of appeal was untimely, nor has he shown that the lack of any
such notice authorizes an extension of the appeal period. Accordingly, the
district court’s order is AFFIRMED.
2