     Case: 12-10019     Document: 00511978674         Page: 1     Date Filed: 09/07/2012




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

                                                                            FILED
                                                                        September 7, 2012
                                     No. 12-10019
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PASCUAL SAMUEL GUERRERO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:08-CV-140
                             USDC No. 1:06-CR-58-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Pascual Samuel Guerrero, federal prisoner # 07431-097, moves this court
for leave to proceed in forma pauperis (IFP) on appeal from the district court’s
order denying a motion pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure seeking to reinstate the time to file an appeal from a judgment
denying relief pursuant to 28 U.S.C. § 2255. A certificate of appealability is not
necessary for this appeal to proceed, as the sole purpose of Guerrero’s Rule 60(b)


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10019    Document: 00511978674      Page: 2    Date Filed: 09/07/2012

                                  No. 12-10019

motion was “to reinstate appellate jurisdiction over the original denial of habeas
relief.” Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007).
      By moving to proceed IFP, Guerrero is challenging the district court’s
certification that the appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5). This court’s inquiry into
the litigant’s good faith “is limited to whether the appeal involves ‘legal points
arguable on their merits (and therefore not frivolous).’” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983).
      The district court construed Guerrero’s motion as sounding under Rule
60(b)(1). The court ruled that the motion was untimely and, moreover, that
Guerrero had failed to demonstrate excusable neglect that would warrant relief
as he had failed to comply with his responsibility to keep the court informed of
his current address.         Guerrero disagrees with the district court’s
characterization of his motion, arguing that the court should have construed the
motion as seeking relief under Rule 60(b)(6). For the first time on appeal, he
argues that he provided the clerk of court with his new address and that the
district court should not have denied relief without allowing him an opportunity
to prove that he notified the court of the address change.
      Neither Rule 60(b)(1) nor Rule 60(b)(6) provides a substitute for a timely
appeal. See Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002); Dunn v. Cockrell,
302 F.3d 491, 492 (5th Cir. 2002). This is particularly true when, as in this case,
“the Rule 60(b) motion is made after time for appeal has expired, and the movant
neither complains of any denial of a full and fair hearing before the district court
nor seeks by the motion to have the district court alter its ruling, but rather asks
only that the order be vacated and reentered.” U.S. v. O’Neil, 709 F.2d 361, 373
(5th Cir. 1983).
      Guerrero has not demonstrated any arguably nonfrivolous claim for
appeal. See Howard, 707 F.2d at 220. Accordingly, his request for leave to



                                         2
   Case: 12-10019   Document: 00511978674   Page: 3   Date Filed: 09/07/2012

                                 No. 12-10019

proceed IFP on appeal is denied, and the appeal is dismissed. See Baugh, 117
F.3d at 202 n.24; 5TH CIR. R. 42.2.
      IFP DENIED; APPEAL DISMISSED.




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