                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 10, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-10373
                         Summary Calendar



TEDDY JOE RABEL,

                                    Petitioner-Appellant,

versus

DOUG DRETKE, 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. 4:04-CV-953
                      --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Teddy Joe Rabel was convicted in Texas state court of felony

murder and sentenced to ten years of imprisonment.     Subsequently,

he challenged his conviction in a 28 U.S.C. § 2254 application.

Noting certain deficiencies in the application, the magistrate

judge order Rabel to correct the deficiencies.   Rabel failed to

comply with the order, and the district court dismissed the

application for want of prosecution.   Rabel filed a FED. R. CIV.


     *
       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this opinion should not be published and is not precedent except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. 05-10373
                                -2-

P. 60(b) motion, arguing that he should be relieved from the

judgment based on counsel’s excusable neglect.    Counsel stated

that he was unaware of the existence of the order and only became

aware of the order upon receiving the dismissal order from the

district court.   The district court denied the motion.      Rabel

then filed a notice of appeal.

     Rabel seeks a certificate of appealability from this court.

However, our jurisdiction is limited to the denial of the FED. R.

CIV. P. 60(b) motion because the notice of appeal was untimely as

to the dismissal of Rabel’s 28 U.S.C. § 2254 application.          Dison

v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994).    With regard to his

argument challenging the district court’s denial of the FED. R.

CIV. P. 60(b) motion, a COA is unnecessary.    See Dunn v.

Cockrell, 302 F.3d 491, 492 (5th Cir. 2002).

     This court reviews the denial of a FED. R. CIV. P. 60(b)

motion for abuse of discretion.   Seven Elves, Inc. v. Eskenazi,

635 F.2d 396, 402 (5th Cir. 1981).   Rabel filed his motion

pursuant to FED. R. CIV. P. 60(b)(1), which permits a court to

relieve a party from final judgment for excusable neglect.         The

district court determined that Rabel was not entitled to relief

from judgment because Rabel failed to explain why the order to

correct the deficiencies in the application was not received but

the following orders from the district court were received.         The

documents mailed to Rabel’s counsel were not returned.       The

district court also noted that Rabel’s motion was not supported
                           No. 05-10373
                                -3-

by an affidavit.   This court also notes that the notice of appeal

was untimely filed as to the dismissal of the 28 U.S.C. § 2254

application.   The pattern of neglect exhibited by Rabel’s counsel

does not warrant relief from judgment based on excusable neglect

under FED. R. CIV. P. 60(b).   Because the district court did not

abuse its discretion in denying the motion, the judgment is

AFFIRMED.   Rabel’s request for a COA is DENIED AS UNNECESSARY.
