                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       February 14, 2007

                                                                Charles R. Fulbruge III
                                                                        Clerk
                              No. 06-40817
                            Summary Calendar


DONTE RAMONE GREEN,

                                           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 Eastern District of Texas
                               (4:02-CV-342)
                           --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant Donte Ramone Green, Texas prisoner #

894464, seeks a certificate of appealability (COA) to appeal the

denial of a FED. R. CIV. P. 60(b) motion.         Green initially filed a

28 U.S.C. § 2254 petition challenging his conviction for robbery.

The district court dismissed the petition as untimely, but Green

failed   to    receive   timely   notice     of   the   dismissal.        Green

subsequently moved for an out-of-time appeal based on his failure

to receive notice, but the district court denied the motion as


     *
       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this opinion should not be published and is not precedent except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.
untimely. Green eventually filed the instant Rule 60(b) motion for

relief from the order denying his motion for an out-of-time appeal.

       As Green is not attempting to use the Rule 60(b) motion to

alter the judgment in his underlying habeas petition, but instead

is seeking relief from the denial of his motion for an out-of-time

appeal, a COA is not necessary.              See 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.

       Nevertheless, Green’s appeal is unavailing.             He contends that

the district court failed to explain adequately its reasons for

denying Rule 60(b) relief.           Giving Green the benefit of liberal

construction, we perceive that he also contends that the district

court abused its discretion by failing to investigate why the

notice of dismissal was returned to the court and by failing to

apply equitable tolling to permit Green to appeal the dismissal.

Green essentially attempts to re-argue claims he made in his motion

for an out-of-time appeal. That motion was previously presented to

this court, and we held that the district court was without

authority to extend the appeal period.             See Green v. Dretke, No.

04-41263 (5th Cir. Nov. 3, 2004); see also FED. R. APP. P. 4(a)(6).

Green has failed to show that the district court’s denial of Rule

60(b) relief was so unwarranted as to constitute an abuse of

discretion.       See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402

(5th Cir. 1981).         Accordingly, the district court’s denial of Rule

60(b) relief is affirmed.          See id.

                                         2
MOTION FOR COA DENIED AS UNNECESSARY; AFFIRMED.




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