     Case: 11-50453     Document: 00511764165         Page: 1     Date Filed: 02/22/2012




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

                                                                            FILED
                                                                         February 22, 2012
                                     No. 11-50453
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROGELIO MIRANDA BACA,

                                                  Petitioner-Appellant

v.

THE STATE OF TEXAS,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:08-CV-36


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Rogelio Miranda Baca, Texas prisoner # 1218867, filed through counsel a
28 U.S.C. § 2254 application in which he claimed that he received ineffective
assistance of trial counsel with respect to his Texas conviction and sentence for
possession of heroin. The district court denied the application, and this court
dismissed Baca’s appeal from that decision on jurisdictional grounds because his
pro se notice of appeal was untimely. See Baca v. Texas, No. 11-50216 (5th Cir.
Oct. 5, 2011). Baca’s instant appeal is from the district court’s denial of his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50453    Document: 00511764165      Page: 2   Date Filed: 02/22/2012

                                  No. 11-50453

motion for late filing of a notice of appeal and the denial of his motion for
reconsideration of that decision. He also moves for the appointment of counsel.
      In his pro se appellate brief, Baca reiterates claims of ineffective
assistance of trial counsel that were raised in his § 2254 application and
contends for the first time that he received ineffective assistance from his
counsel in his § 2254 proceedings in the district court; his right of access to the
courts has been denied; and he has been subjected to cruel and unusual
punishment. Given the earlier dismissal of his appeal from the district court’s
denial of his § 2254 application, Baca’s arguments concerning his § 2254 claims
are not considered here. Additionally, we will not consider the claims he
attempts to raise for the first time in this appeal. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
      Baca’s opening brief lacks any argument challenging the district court’s
denial of his motion for late filing of a notice of appeal. He has thus waived the
issue. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (recognizing that
we generally will not consider arguments presented for the first time in a reply
brief). In any event, Baca has not shown that he met the requirements of
Federal Rule of Appellate Procedure 4(a)(5)(A)(i) or (a)(6)(A) and thus has not
demonstrated that the district court abused its discretion in denying his
motions. See Resendiz v. Dretke, 452 F.3d 356, 358-62 (5th Cir. 2006). Baca’s
motion for appointment of counsel is denied.
      AFFIRMED; MOTION DENIED.




                                        2
