     Case: 17-50246      Document: 00514557618         Page: 1    Date Filed: 07/17/2018




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

                                      No. 17-50246                          FILED
                                                                        July 17, 2018
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

                                                 Plaintiff-Appellee

v.

CLETO SAMUEL DURAN, also known as Boy,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:05-CV-237
                            USDC No. 1:03-CR-144-3


Before SOUTHWICK, HAYNES, and HO, Circuit Judges.
PER CURIAM: *
       Cleto Samuel Duran, federal prisoner # 28996-180, pleaded guilty to the
charge of conspiracy to violate the Racketeer Influenced and Corrupt
Organizations Act, and no direct appeal was taken following his conviction.
Duran’s initial 28 U.S.C. § 2255 motion challenging that conviction was denied,
and no timely appeal was filed by Duran’s retained counsel. Duran’s counseled
motion for leave to file an out-of-time appeal was denied on the merits in June


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50246

2007, and his August 2009 pro se motion for reconsideration of the June 2007
order, filed pursuant to Federal Rule of Civil Procedure 60(b), was denied as
untimely. In February 2017, Duran filed the instant Rule 60(b) motion seeking
to be restored to the opportunity to appeal the denial of his § 2255 motion. The
district court construed the instant motion as challenging the denial of his
previously filed Rule 60(b) motion and denied it on the merits. Duran now
seeks a certificate of appealability (COA) to appeal that denial.
      This case presents only Duran’s appeal from the denial of his Federal
Rule of Civil Procedure 60(b) motion and not an appeal from the merits
disposition of his habeas petition; consequently, no COA is required. See Dunn
v. Cockrell, 302 F.3d 491, 492-93 (5th Cir. 2002). Accordingly, Duran’s motion
for COA is denied as unnecessary.
      The only issue before us is whether the district court abused its
discretion in denying the Rule 60(b) motion. See Dunn, 302 F.3d at 492. The
sole purpose for the filing of Duran’s Rule 60(b) motion was to circumvent the
jurisdictional flaw caused by his attorney’s failure timely to file a notice of
appeal from the judgment denying habeas relief. A Rule 60(b) motion is not a
substitute for a timely appeal. Dunn, 302 F.3d at 492. Duran has long been
aware of his attorney’s shortcomings. His discovery that his attorney was the
subject of numerous disciplinary proceedings merely corroborates his earlier
claims that counsel was ineffective in failing to timely appeal the denial of his
§ 2255 motion. But it does not show that the district court’s denial of his
previously filed Rule 60(b) motion as untimely should be disturbed.          The
district court’s denial of Duran’s instant Rule 60(b) motion was not “so
unwarranted as to constitute an abuse of discretion.” Seven Elves, Inc., 635
F.2d 396, 402 (5th Cir. 1981). Because Duran has not shown that his appeal




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                                 No. 17-50246

has any arguable legal merit, it is frivolous. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983).
      Accordingly, Duran’s motion for a COA is DENIED AS UNNECESSARY.
His motion for leave to proceed IFP on appeal and his motion for the
appointment of counsel are DENIED, and the appeal is DISMISSED as
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); Howard, 707
F.2d at 220; 5TH CIR. R. 42.2.




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