     Case: 12-20128       Document: 00512109101         Page: 1     Date Filed: 01/10/2013




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

                                                                            FILED
                                                                         January 10, 2013
                                     No. 12-20128
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

LUIS SANTOS LAGAITE, JR.,

                                                  Plaintiff-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:02-CV-1948


Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Luis Santos Lagaite, Jr., Texas prisoner # 762508, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his motion for
reconsideration of its 2002 dismissal of his 28 U.S.C. § 2254 application as time
barred. He alternatively moves for authorization to file a successive § 2254
application. Lagaite was convicted in 1996 after a jury trial of capital murder
and sentenced to life imprisonment.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20128

      Lagaite argues that the district court erred in denying his motion for
reconsideration of the dismissal of his second § 2254 application as time barred
because, when it dismissed his first § 2254 application without prejudice, it did
not advise him of the possibility that, absent equitable tolling, any subsequent
§ 2254 application could be time barred or that he could dismiss his unexhausted
claims and proceed with his exhausted claims. For the first time in his COA
motion to this court, he also takes issue with some of the factual findings by the
district court in connection with its dismissal of his second § 2254 application as
time barred, and he argues that the Antiterrorism and Effective Death Penalty
Act (AEDPA) limitations period should have been tolled while his first § 2254
application was pending. In addition, for the first time before this court, he
asserts that, in 2011, he discovered a 2003 letter from his appointed counsel to
the trial court, advising the court that there was no biological evidence available
in his case to subject to DNA testing. In connection with Lagaite’s motion for a
COA, we do not consider claims raised for the first time before this court. See
Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003).
      To obtain a COA, Lagaite must show that a jurist of reason could conclude
that the district court’s denial of his motion for reconsideration, construed here
as a Federal Rule of Civil Procedure 60(b) motion, was an abuse of discretion.
See Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011); see also Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Lagaite has not made such a showing. See
FED. R. CIV. P. 60(c)(1). Accordingly, his motion for a COA is denied.
      To obtain authorization to file a successive § 2254 application, Lagaite
must make a prima facie showing that either: (1) his claims rely on a new rule
of constitutional law that was made retroactive to cases on collateral review by
the Supreme Court and was previously unavailable, or (2) the factual predicate
for his claims could not have been discovered previously through due diligence
and the underlying facts, if proven, would establish by clear and convincing



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                                  No. 12-20128

evidence that, but for constitutional error, no reasonable trier of fact would have
found him guilty of the underlying offense. 28 U.S.C. § 2244(b)(2), (b)(3)(C).
      Lagaite’s request for leave to file a successive § 2254 application is based
upon his alleged 2011 discovery of counsel’s 2003 letter, advising the state trial
court that there was no biological evidence available in his case to subject to
DNA testing. As Lagaite has not made the required showing under § 2244(b)(2),
his alternate motion for authorization to file a successive § 2254 application is
denied. See § 2244(b)(3)(C). His motion for the appointment of counsel is also
denied.
      COA DENIED; MOTION FOR AUTHORIZATION TO FILE A SECOND
OR SUCCESSIVE § 2254 APPLICATION DENIED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED.




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