     Case: 15-10834       Document: 00513710424        Page: 1    Date Filed: 10/07/2016




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 15-10834                              FILED
                                                                          October 7, 2016

TOBY JOSHUA JOHNSTON,                                                      Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

LORIE DAVIS, 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. 4:07-CV-397


Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
         Toby Joshua Johnston, Texas prisoner # 1377558, is serving a 35-year
term of imprisonment for possession of child pornography, aggravated sexual
assault of a child under fourteen years of age, and sexual performance by a
child.       In 2007, Johnston filed an unsuccessful 28 U.S.C. § 2254 petition
challenging his convictions. In July 2015, he filed a motion for relief from
judgment pursuant to Federal Rule of Civil Procedure 60(b) seeking relief from



         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: 15-10834     Document: 00513710424       Page: 2   Date Filed: 10/07/2016


                                    No. 15-10834

the denial of his § 2254 petition. The district court denied the motion on the
ground that it was not filed within a reasonable time as required by Federal
Rule of Civil Procedure 60(c)(1).
      Johnston now seeks a certificate of appealability (COA) to appeal the
district court’s denial of his Federal Rule of Civil Procedure 60(b) motion. He
also has filed motions for leave to file a corrected brief and a supplemental
brief, as well as a motion to take judicial notice of adjudicative facts.
      Before he can appeal the denial of his motion under Rule 60(b) of the
Federal Rules of Civil Procedure, Johnston must obtain a COA. See Ochoa
Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007). The district court
did not determine whether Johnston was entitled to a COA. Because the
district court has not issued a COA ruling, we assume without deciding that
we lack jurisdiction over the appeal. See Rule 11(a), RULES GOVERNING § 2254
PROCEEDINGS; Cardenas v. Thaler, 651 F.3d 442, 444 & nn.1-2 (5th Cir. 2011).
Nevertheless, we decline to remand this case to the district court for a COA
ruling because the appeal is frivolous, and a remand would be futile. See
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).
      In the alternative, even if we have jurisdiction over the appeal absent a
COA ruling in the district court, we would deny a COA. To obtain a COA,
Johnston must establish that reasonable jurists would debate that the district
court abused its discretion in denying the Rule 60(b) motion. Hernandez v.
Thaler, 630 F.3d 420, 427-28 (5th Cir. 2011); see Slack v. McDaniel, 529 U.S.
473, 484 (2000). He has failed to make the required showing.
      Accordingly, the appeal is DISMISSED for lack of jurisdiction, and
Johnston’s motions for a COA, for leave to file a corrected brief, for leave to file
a supplemental brief, and to take judicial notice of adjudicative facts are
DENIED AS MOOT.



                                         2
