     Case: 17-50728      Document: 00514406628         Page: 1    Date Filed: 03/28/2018




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

                                    No. 17-50728                                 FILED
                                  Summary Calendar                         March 28, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID JASON ADAMS,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:14-CV-462
                             USDC No. 6:13-CR-24-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       David Jason Adams, federal prisoner # 41770-379, has moved for leave
to proceed in forma pauperis (IFP) to appeal the dismissal of his motion under
Federal Rule of Civil Procedure 60(b), in which he sought reconsideration of
the district court’s denial of his motion for an extension of time to file an appeal.
By moving to proceed IFP, Adams challenges the district court’s certification



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50728

decision that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).          He need not obtain a certificate of
appealability to appeal because the purpose of his Rule 60(b) motion was the
reinstatement of appellate jurisdiction. See Ochoa Canales v. Quarterman,
507 F.3d 884, 888 (5th Cir. 2007); see also Dunn v. Cockrell, 302 F.3d 491, 492
(5th Cir. 2002).
      Adams asserts that the district court wrongly concluded that he did not
timely seek an extension of time to file an appeal. He argues that his notice of
appeal, which was filed within the time period during which he could move for
an extension, was an implicit motion to extend the time to file an appeal under
Federal Rule of Appellate Procedure 4(a)(5)(A). We review the denial of a Rule
60(b) motion for an abuse of discretion. See Seven Elves, Inc. v. Eskenazi,
635 F.2d 396, 402 (5th Cir. 1981).
      To the extent that the claims raised in Adams’s Rule 60(b) motion, which
he filed after we dismissed his untimely appeal for lack of jurisdiction, are not
precluded under the law of the case doctrine, see Fuhrman v. Dretke, 442 F.3d
893, 896-97 (5th Cir. 2006), he has not shown that the district court abused its
discretion, see Seven Elves, Inc., 635 F.2d at 402. He does not contend, and the
record does not reflect, that he filed a pleading that could be treated as a notice
of appeal within the prescribed 60-day period. See FED. R. APP. P. 4(a)(1)(B).
While Adams asserts that he filed a notice of appeal within the 30-day period
to seek an extension of time based on excusable neglect or good cause, see FED.
R. APP. P. 4(a)(5)(A), he has not shown that the district court’s contrary finding
was clearly erroneous, see Rodriguez v. Johnson, 104 F.3d 694, 696 (5th Cir.
1997). Specifically, Adams has not shown that the district court clearly erred
in finding that his notice of appeal was mailed contemporaneously and in the
same envelope as his motion for an extension of time, which was signed and



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                                 No. 17-50728

mailed beyond the 30-day period. An untimely notice of appeal otherwise may
not be treated as an implicit motion to extend time lacks merit where, as here,
the notice of appeal provides no explanation for the late filing. See Henry v.
Estelle, 688 F.2d 407, 407 (5th Cir. 1982).
      Therefore, Adams’s appeal does not present a nonfrivolous issue and is
not taken in good faith. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, the motion to proceed IFP is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at n.24; 5TH CIR. R. 42.2.




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