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

                                                FILED
                                                                September 17, 2009
                                No. 08-20333
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

CARLOS ENRIQUE GONZALEZ,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:07-CV-3957
                           USDC No. 4:00-CR-663-1


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
      In 2001, Carlos Enrique Gonzalez, federal prisoner # 75164-079, was
convicted of kidnaping, aiding and abetting; hostage taking, aiding and abetting;
and making threatening or harassing communications in interstate and foreign
commerce, aiding and abetting. Following these convictions, Gonzalez was
sentenced to a total of 262 months of imprisonment. In 2007, Gonzalez filed a
F ED. R. C IV. P. 60(b) motion seeking to reopen the 2004 judgment denying his


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-20333

28 U.S.C. § 2255 proceedings due to the bias and prejudice of the district court
judge. He also filed a motion to recuse pursuant to 28 U.S.C. § 144. The district
court denied both motions as untimely.
       Gonzalez argues that his Rule 60(b) motion was not an unauthorized
successive § 2255 motion and that it was timely filed since there is no time limit
to file a Rule 60(b)(6) motion. He asserts that the district court abused its
discretion in denying his Rule 60(b)(6) motion because his constitutional due
process right to have his § 2255 claims considered by an impartial judge was
violated. He requests a certificate of appealability (COA) from this court.
       Because Gonzalez’s Rule 60(b) motion sought to amend or alter the
judgment in his first § 2255 proceeding, he must obtain a COA to proceed on
appeal. See Ochoa Canales v. Quarterman, 507 F.3d 884, 887-88 (5th Cir. 2007).
To obtain a COA, Gonzalez must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). Under this standard, when the district court’s denial of
relief is based solely on procedural grounds, “a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
       Gonzalez has not met this standard. Accordingly, his request for a COA
to appeal the denial of his Rule 60(b)(6) motion is denied. See Slack, 529 U.S. at
484.
       This court has previously held that a COA was not required to appeal the
denial of a motion to recuse. See Trevino v. Johnson, 168 F.3d 173, 176-78 (5th
Cir. 1999). The denial of a motion to recuse under § 144 is reviewed for an abuse
of discretion. United States v. MMR Corp., 954 F.2d 1040, 1044 (5th Cir. 1992).
Motions brought under § 144 and 28 U.S.C. § 455 are substantively similar and
both require recusal only for “personal, extrajudicial bias.” Id. at 1045-46.

                                         2
                                  No. 08-20333

      Gonzalez has failed to show that the district court’s denial of his motion
to recuse as untimely, when the motion was based on incidents occurring at trial
years before he filed his § 2255 motion, was an abuse of discretion. See MMR
Corp., 954 F.2d at 1044-45 & n.2. Rather than filing the motion to recuse at the
time he filed his § 2255 motion, Gonzalez filed it years later, after the judge had
made a decision adverse to him. That is “[t]he most egregious delay — the
closest thing to per se untimeliness.” United States v. Sanford, 157 F.3d 987, 988
(5th Cir. 1998). Thus, the district court’s order denying Gonzalez’s motion to
recuse is affirmed.
      COA DENIED; JUDGMENT AFFIRMED.




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