     Case: 13-11160      Document: 00512689496         Page: 1    Date Filed: 07/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 13-11160                               FILED
                                  Summary Calendar                          July 8, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
GREGORY WAYNE BRISCOE,

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, 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. 4:11-CV-511


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Petitioner-Appellant Gregory Wayne Briscoe, Texas prisoner # 1285555,
appeals the denial of his pro se motion seeking to file an out of time appeal of
the denial of his 28 U.S.C. § 2254 motion. The district court construed the
motion as seeking to reopen the appeal pursuant to Federal Rule of Appellate




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-11160    Document: 00512689496     Page: 2   Date Filed: 07/08/2014


                                 No. 13-11160

Procedure 4(a)(6), and denied it. Briscoe timely filed an appeal from the denial
of his motion to reopen.
      We review the denial of a Rule 4(a)(6) motion for abuse of discretion. In
re Jones, 970 F.2d 36, 39 (5th Cir. 1992). As Briscoe filed his motion well
beyond the time limit set forth in Rule 4(a)(6)(B), the district court lacked
authority to grant him relief. See Resendiz v. Dretke, 452 F.3d 356, 360 (5th
Cir. 2006). Briscoe’s contention that the district court erred by construing his
motion as seeking relief under Rule 4(a)(6) lacks merit. His motion made clear
that he sought to reopen the time to appeal based on lack of notice. The
substance of his motion is controlling. See Castro v. United States, 540 U.S.
375, 381-82 (2003); Hernandez v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011).
      AFFIRMED.




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