     Case: 16-20597      Document: 00514236858         Page: 1    Date Filed: 11/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                     No. 16-20597                                FILED
                                   c/w No. 16-20769                      November 14, 2017
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
MCKINLEY DALE THOMAS,

                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR TEXAS DEPARTMENT                                 OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:15-CV-3566
                             USDC No. 4:15-CV-1947


Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
       McKinley Dale Thomas, Texas prisoner # 1484717, moves this court for
a certificate of appealability (COA) to appeal the district court’s August 27,
2015 dismissal of his 28 U.S.C. § 2254 application for failure to pay a filing fee.
Thomas also moves this court for a COA to appeal the district court’s August


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-20597
                                c/w No. 16-20769
4, 2016 dismissal of his 28 U.S.C. § 2254 application as time barred. Thomas
filed the applications to challenge his life sentence for murder. His motion to
consolidate his cases on appeal was granted.
      Thomas contends that the district court abused its discretion in
dismissing his § 2254 application on August 27, 2015, because he never
received the district court’s order requiring him to pay a filing fee. As to the
district court’s August 4, 2016 order dismissing his § 2254 application as
untimely, Thomas contends that he is entitled to equitable tolling of the time
limitations period. Thomas further contends that the district court abused its
discretion in denying his motions for appointment of counsel and for recusal
and in dismissing his § 2254 application on August 4, 2016 as untimely without
conducting an evidentiary hearing.
      A COA may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). Where, as here, the district court’s denial
of federal habeas relief is based on procedural grounds, this court will issue a
COA “when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
      On January 5, 2016, Thomas voluntarily withdrew his appeal of the
court’s August 27, 2015 decision dismissing his § 2254 application for failure
to pay the required filing fee. Thus, that judgment is not properly before this
court. To the extent that Thomas challenges the district court’s August 23,
2016 judgment denying his Federal Rule of Civil Procedure 60(b) motion, we
do not have jurisdiction to review the matter since Thomas failed to file a



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                                 No. 16-20597
                               c/w No. 16-20769
timely notice of appeal. See Bowles v. Russell, 551 U.S. 205, 214 (2007); FED.
R. APP. P. 4(A)(1)(A).    Accordingly, these claims are dismissed for lack of
jurisdiction and a COA is denied as moot. As to Thomas’s remaining claims,
his request for a COA is denied as he fails to make the requisite showing. See
Slack, 529 U.S. at 484.
      Accordingly, IT IS ORDERED that Thomas’s appeal is DISMISSED in
part for lack of jurisdiction, and his motions for a COA are DENIED.




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