Rojas-Meliton v. Lumpkin

Opinion

Case: 23-20308 Document: 00516964092 Page: 1 Date Filed: 11/10/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED November 10, 2023

No. 23-20308 ____________ Lyle W. Cayce Clerk

Jose Rojas-Meliton,

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division,

Respondent—Appellee.

______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:22-CV-537

______________________________

Before Smith, Southwick, and Wilson, Circuit Judges. Per Curiam:* Jose Rojas-Meliton, Texas prisoner # 02149143, was convicted of aggravated sexual assault of a child. He currently appeals the district court’s denial of his motion under Federal Rule of Appellate Procedure 4(a)(6) to reopen the appeal period for the denial of his 28 U.S.C. § 2254 application.

Because Rojas-Meliton’s motion to reopen was filed under Rule

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-20308 Document: 00516964092 Page: 2 Date Filed: 11/10/2023

No. 23-20308

4(a)(6), his motion for a certificate of appealability 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). We dispense with further briefing because this appeal may be resolved on the available record.

The district court did not abuse its discretion when it denied Rojas-

Meliton’s motion to reopen. See In re Jones, 970 F.2d 36, 39 (5th Cir. 1992). Rojas-Meliton does not satisfy Rule 4(a)(6)(A) because his counsel received notice of the denial of his application within 21 days of judgment. See Perez v. Stephens, 784 F.3d 276, 283 (5th Cir. 2015). Additionally, we reject Rojas- Meliton’s argument that his counsel abandoned him and that such abandonment warranted an exception to Rule 4(a)(6)(A)’s strictures. See id. at 283– 84; Resendiz v. Dretke, 452 F.3d 356, 361–62 (5th Cir. 2006); see also Bowles v. Russell, 5511 U.S. 205, 208, 214 (2007).

The denial of the motion to reopen is AFFIRMED.