     Case: 12-40243       Document: 00512156465         Page: 1     Date Filed: 02/26/2013




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

                                                                            FILED
                                                                         February 26, 2013
                                     No. 12-40243
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EDWIN JOEL HERNANDEZ, true name Roque Antonio Renteria-Caicedo, also
known as Luis Andres Cotto-Santiago,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:09-CV-109
                             USDC No. 5:08-CR-226-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Edwin Joel Hernandez, federal prisoner # 82562-179, pleaded guilty,
pursuant to a plea agreement, to conspiracy to possess with intent to distribute
in excess of five kilograms of cocaine. In 2009, he unsuccessfully challenged his
conviction and sentence in a motion under 28 U.S.C. § 2255.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40243

      He now moves for a certificate of appealability (COA) and leave to proceed
in forma pauperis (IFP) to appeal the district court’s denial of his motion under
Federal Rule of Civil Procedure 60(b). Hernandez asserted in the Rule 60(b)
motion that the district court failed to address five of the claims in his earlier 28
U.S.C. § 2255 motion, and he sought to reopen his § 2255 proceedings for the
district court to address those claims. Citing Dunn v. Cockrell, 302 F.3d 491, 492
(5th Cir. 2002), Hernandez also requested that the judgment dismissing his
§ 2255 motion be reentered in order to restart his time for appealing the denial
of his § 2255 motion. The district court determined that the Rule 60(b) motion
constituted an unauthorized successive § 2255 motion that it lacked jurisdiction
to consider.
      With respect to Hernandez’s Rule 60(b) argument that his § 2255
proceedings should be reopened because the district court failed to address some
of his § 2255 claims, a COA is required because the issue involves an attempt by
Hernandez to use Rule 60(b) to alter or amend the original § 2255 judgment. See
Ochoa Canales v. Quarterman, 507 F.3d 884, 887-88 (5th Cir. 2007). To obtain
a COA with respect to this issue, Hernandez must show that a reasonable jurist
would debate the correctness of the district court’s denial of Rule 60(b) relief.
See Hernandez v. Thaler, 630 F.3d 420, 428, 430-31 (5th Cir. 2011). Regarding
this issue, Hernandez contends that the district court erred in construing his
Rule 60(b) motion as a successive § 2255 motion because his argument that the
district court failed to address some of his § 2255 claims attacked a defect in the
integrity of his § 2255 proceedings, rather than the district court’s resolution of
his § 2255 claims on the merits. See Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4
(2005).
      In denying Hernandez’s § 2255 motion, the district court did address the
five claims in dispute, deciding that they were barred by the waiver of collateral
review in Hernandez’s plea agreement.           Hernandez’s Rule 60(b) motion
contained no argument challenging that determination, and he does not brief

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                                 No. 12-40243

any argument here undermining the district court’s analysis and conclusion that
his waiver of collateral review was enforceable and applicable to those claims.
Thus, even if Hernandez is correct that his challenge to the district court’s
failure to address some of his § 2255 claims attacked only a defect in the
integrity of his § 2255 proceedings, he has not made the showing required to
obtain a COA on this issue. See Hernandez, 630 F.3d 420 at 428, 430-31.
Accordingly, we deny a COA as to this issue.
      Hernandez also challenges the denial of his Rule 60(b) request for the
judgment dismissing his § 2255 motion to be reentered to allow him to timely
appeal from the denial of his § 2255 motion. A COA is not required with respect
to this part of Hernandez’s appeal, and Hernandez’s motion for a COA is denied
as unnecessary with respect to this issue. See Ochoa Canales, 507 F.3d at
887-88; Dunn, 302 F.3d at 492.
      A Rule 60(b) motion which seeks reentry of a judgment dismissing a § 2255
motion in order to allow the filing of a timely appeal should not be treated as a
successive § 2255 motion. See Dunn, 302 F.3d at 492 n.1. Nevertheless,
Hernandez has not shown that he was entitled to relief under Rule 60(b) with
respect to this issue, as Rule 60(b) may not be used to circumvent the
requirements under Federal Rule of Appellate Procedure 4(a)(5) for obtaining an
extension of time to file an appeal. See Dunn, 302 F.3d at 492-93. Accordingly,
we affirm the denial of Rule 60(b) relief with respect to Hernandez’s request for
reentry of the judgment dismissing his § 2255 motion.
      AFFIRMED IN PART; COA MOTION DENIED; IFP MOTION DENIED.




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