Ricky Barnett v. Lorie Davis, Director

698 F. App'x 239

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 10, 2017
• Docket: 16-41193
• Status: Unpublished

Opinion

PER CURIAM: *

Ricky Allen Barnett, Texas prisoner # 01541732, moves for a certificate of ap-pealability (COA) and leave to proceed in forma pauperis (IFP) on appeal of the district court’s denial of his motion to reopen the appeal period pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure. Rule 4(a)(6) is permissive and compliance with Rule 4(a)(6) does not- require the district court to grant the motion, we review the district court’s denial of the motion for an abuse .of discretion. See In re Jones, 970 F.2d 36, 39 (5th Cir. 1992). Barnett did not file his motion to reopen the appeal period within 180 days of the entry of the judgment or within 14 days after he received notice of the judgment and thus did not satisfy the requirements of Rule 4(a)(6)(2). Accordingly, the district court’s denial of the motion was not an abuse of discretion. Rodriguez v. Johnson, 104 F.3d 694, 696 (5th Cir. 1997).

The motion for a COA. is DENIED AS UNNECESSARY. See Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007); Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002). Even if a COA were required, Barnett has not shown that one should issue. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

He also has not shown that there is a nonfrivolous issue for appeal concerning the denial of his motion to reopen. See Carson v. Policy, 689 F.2d 562, 586 (5th Cir. 1982). Barnett’s motion for IFP is DENIED. As there is no nonfrivolous issue for appeal, the appeal is DISMISSED AS FRIVOLOUS. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5th Cir. R. 42.2.

* Pursuant to 5th Cir. R, 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.