                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 28, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 07-20144
                           Summary Calendar


CLINTON DILLARD,

                                      Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, 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. 4:04-CV-3823
                        --------------------

Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Clinton Dillard, Texas prisoner # 769921, moves this court for

a certificate of appealability (COA) to appeal the denial of a FED.

R. CIV. P. 60(b) motion.   Dillard initially filed a 28 U.S.C. § 2254

petition in 2004 challenging his 1996 murder conviction.             The

district court dismissed the petition as barred by the one-year

limitations period of 28 U.S.C. § 2244(d).    Dillard then filed his

Rule 60(b) motion for relief from the judgment dismissing his §

2254 petition as time-barred.


     *
       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this opinion should not be published and is not precedent except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.
                               No. 07-20144
                                    -2-

     Dillard did not attempt to use his Rule 60(b) motion to add a

new habeas claim or to attack the federal court’s resolution of a

claim on the merits; he instead challenged the district court’s

determination that his § 2254 petition should be dismissed as time

barred.    Therefore, as Dillard argues, a COA is not necessary, and

this court has jurisdiction to consider the arguments presented in

his Rule 60(b) motion.       See Gonzalez v. Crosby, 545 U.S. 524, 532

& n.4 (2005); Dunn v. Cockrell, 302 F.3d 491, 492 & n.1 (5th Cir.

2002); 28 U.S.C. § 2253(c)(1).      Accordingly, the motion for a COA

is denied as unnecessary.

     Dillard contends that he is entitled to relief from the

judgment because the district court, in determining that his               §

2254 petition should be dismissed as time-barred, rendered its

judgment   in   a   manner   inconsistent   with   due   process,   and   in

violation of 28 U.S.C. § 2243.       He notes that the district court

dismissed his § 2254 petition on its own motion.

     Although the district court did not provide “fair notice and

an opportunity for the parties to present their positions,” Day v.

McDonough, 126 S. Ct. 1675, 1684 (2006), prior to dismissing the §

2254 petition as time-barred, the record reflects that Dillard

utilized a FED. R. CIV. P. 59(e) to challenge the district court’s

ruling and to fully address the limitations issue.        Dillard has not

shown that the district court abused its discretion in denying his

Rule 60(b) motion.     See Warfield v. Byron, 436 F.3d 551, 555 (5th
                           No. 07-20144
                                -3-

Cir. 2006); Simmons v. Reliance Standard Life Ins. Co. of Texas,

310 F.3d 865, 870 n.4 (5th Cir. 2002).

     Dillard also contends that he is entitled to Rule 60(b) relief

because the district court, in denying his Rule 59(e) motion,

inaccurately characterized his constitutional challenges to the

one-year limitations period of 28 U.S.C. § 2244(d) as “foreclosed.”

Even if the creative constitutional arguments raised by Dillard had

not been directly foreclosed by previous decisions, Dillard has

failed to show that the district court’s denial of his Rule 60(b)

motion was an abuse of discretion.   See Warfield, 436 F.3d at 555;

Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).



     AFFIRMED.
