     Case: 14-20620      Document: 00513059626         Page: 1    Date Filed: 05/29/2015




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

                                      No. 14-20620                                FILED
                                                                              May 29, 2015
                                                                             Lyle W. Cayce
CHAD FENLEY DAVIS,                                                                Clerk

                                                 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 Southern District of Texas
                             USDC No. 4:12-CV-2919


Before KING, JOLLY and HAYNES, Circuit Judges.
PER CURIAM: *
       Chad Fenley Davis, Texas prisoner # 1336883, is serving a life sentence
for capital murder. He has moved for a certificate of appealability (COA) from
the denial of a motion he filed under Federal Rule of Civil Procedure 60(b)
concerning his prior 28 U.S.C. § 2254 proceeding. A COA is unnecessary
because Davis merely asked the district court to reopen the time for filing an




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20620     Document: 00513059626     Page: 2   Date Filed: 05/29/2015


                                  No. 14-20620

appeal from the denial of the § 2254 petition. See Dunn v. Cockrell, 302 F.3d
491, 492 & n.1 (5th Cir. 2002).
      Davis’s case is therefore before us on his motion to appeal IFP, and our
inquiry “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) (citation omitted). We review the denial of Davis’s Rule 60
motion for abuse of discretion. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396,
402 (5th Cir. 1981).    The denial “must have been so unwarranted as to
constitute an abuse of discretion.” Id. A Rule 60 motion may not be used to
circumvent the time limits for appealing, especially where, as here, the motion
was made after the period for seeking an extension of time for appeal has
expired. See Dunn, 302 F.3d at 492-93; see also Perez v. Stephens, 745 F.3d
174, 177-79 (5th Cir.) (holding that Rule 60(b) does not permit circumvention
of Rule 4’s time limits for appealing in a habeas case), cert. denied, 135 S. Ct.
401 (2014). Martinez v. Ryan, 132 S. Ct. 1309 (2012), does not help Davis
because Martinez did not create an exception “to statutory limits on appellate
jurisdiction.” Perez, 745 F.3d at 179. The denial of Davis’s Rule 60 motion was
not an abuse of discretion, and his appeal lacks arguable merit. See Howard,
707 F.2d at 220; Seven Elves, 635 F.2d at 402.
      A COA is DENIED AS UNNECESSARY; the IFP motion is DENIED,
and the appeal is DISMISSED. 5TH CIR. R. 42.2.




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