Case: 15-10834 Document: 00513710424 Page: 1 Date Filed: 10/07/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-10834 FILED
October 7, 2016
TOBY JOSHUA JOHNSTON, Lyle W. Cayce
Clerk
Petitioner-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CV-397
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Toby Joshua Johnston, Texas prisoner # 1377558, is serving a 35-year
term of imprisonment for possession of child pornography, aggravated sexual
assault of a child under fourteen years of age, and sexual performance by a
child. In 2007, Johnston filed an unsuccessful 28 U.S.C. § 2254 petition
challenging his convictions. In July 2015, he filed a motion for relief from
judgment pursuant to Federal Rule of Civil Procedure 60(b) seeking relief from
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: 15-10834 Document: 00513710424 Page: 2 Date Filed: 10/07/2016
No. 15-10834
the denial of his § 2254 petition. The district court denied the motion on the
ground that it was not filed within a reasonable time as required by Federal
Rule of Civil Procedure 60(c)(1).
Johnston now seeks a certificate of appealability (COA) to appeal the
district court’s denial of his Federal Rule of Civil Procedure 60(b) motion. He
also has filed motions for leave to file a corrected brief and a supplemental
brief, as well as a motion to take judicial notice of adjudicative facts.
Before he can appeal the denial of his motion under Rule 60(b) of the
Federal Rules of Civil Procedure, Johnston must obtain a COA. See Ochoa
Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007). The district court
did not determine whether Johnston was entitled to a COA. Because the
district court has not issued a COA ruling, we assume without deciding that
we lack jurisdiction over the appeal. See Rule 11(a), RULES GOVERNING § 2254
PROCEEDINGS; Cardenas v. Thaler, 651 F.3d 442, 444 & nn.1-2 (5th Cir. 2011).
Nevertheless, we decline to remand this case to the district court for a COA
ruling because the appeal is frivolous, and a remand would be futile. See
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).
In the alternative, even if we have jurisdiction over the appeal absent a
COA ruling in the district court, we would deny a COA. To obtain a COA,
Johnston must establish that reasonable jurists would debate that the district
court abused its discretion in denying the Rule 60(b) motion. Hernandez v.
Thaler, 630 F.3d 420, 427-28 (5th Cir. 2011); see Slack v. McDaniel, 529 U.S.
473, 484 (2000). He has failed to make the required showing.
Accordingly, the appeal is DISMISSED for lack of jurisdiction, and
Johnston’s motions for a COA, for leave to file a corrected brief, for leave to file
a supplemental brief, and to take judicial notice of adjudicative facts are
DENIED AS MOOT.
2