     Case: 16-40582      Document: 00514057190         Page: 1    Date Filed: 06/30/2017




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

                                      No. 16-40582                                   FILED
                                                                                 June 30, 2017
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk

                                                 Plaintiff-Appellee

v.

EARNEST LYNN ROSS,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CV-293
                            USDC No. 4:08-CR-143-1


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Earnest Lynn Ross, Texas prisoner # 1728219 and federal prisoner
# 15348-078, was convicted in federal court of two counts of possession of a
firearm by a convicted felon. He filed a petition for a writ of error coram nobis
challenging these convictions; we previously held that Ross was not entitled to
such relief because he was in custody but remanded so the district court could
construe his petition as a timely 28 U.S.C. § 2255 motion. The district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40582

ultimately dismissed Ross’s case without prejudice for failure to prosecute, and
we dismissed Ross’s appeal because his notice of appeal was untimely.
      Following this ruling, Ross filed a Federal Rule of Civil Procedure 60(b)
motion, in which he asserted that he had reasonably believed that when his
case was remanded, the district court was on notice of his change of address.
In addition, he contended that the prison mailbox rule should have applied to
the objections and the notice of appeal he filed following the dismissal for
failure to prosecute. The district court denied relief, concluding that Ross
failed to show that the dismissal of his case was the result of inadvertence or
excusable neglect, that the Rule 60(b) motion was untimely, and that the
motion constituted an unauthorized successive § 2255 motion. Ross now seeks
a certificate of appealability (COA) to challenge the district court’s denial of his
Rule 60(b) motion.
      A COA is necessary to appeal the denial of Rule 60(b) motion, except
“when the purpose of the motion is to reinstate appellate jurisdiction over the
original denial of habeas relief.” Ochoa Canales v. Quarterman, 507 F.3d 884,
888 (5th Cir. 2007) (28 U.S.C. § 2254 proceeding). Ross’s assertions that the
district court erred in dismissing his § 2255 case for failure to prosecute based
on his failure to update his address do not seek to reinstate appellate
jurisdiction and require a COA. See id.; see also Gonzalez v. Crosby, 545 U.S.
524 532 & n.4 (2005) (§ 2254 proceeding) (stating that a Rule 60(b) challenge
to a procedural ruling that precluded a merits determination constitutes a
proper Rule 60(b) challenge). In order to obtain a COA, Ross must establish
that “a jurist of reason could conclude that the district court’s denial of [his]
motion was an abuse of discretion.” Hernandez v. Thaler, 630 F.3d 420, 428
(5th Cir. 2011).




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                                  No. 16-40582

      Ross maintains that the district court wrongly determined that his Rule
60(b) motion was untimely because his claims arose under Rule 60(b)(6), which
must only be filed “within a reasonable time.” Rule 60(c)(1). In addition, he
contends that his failure to advise the district court of his address change was
reasonable because he had been transferred to a state prison while his case
was pending on appeal and he could not have anticipated a remand. Ross also
asserts that the reference in our remand order to his Texas prisoner number
should have put the district court on notice of a transfer to a state prison
facility. He has not established that reasonable jurists would conclude that
the district court’s denial of relief constituted an abuse of discretion. See
Hernandez, 630 F.3d at 428.
      In contrast, Ross’s challenges to the timeliness of the notice of appeal he
filed following the dismissal for failure to prosecute are in effect an attempt to
reinstate appellate jurisdiction, and he does not need a COA to appeal the
denial of Rule 60(b) relief on that ground. See Dunn v. Cockrell, 302 F.3d 491,
492 & n.1 (5th Cir. 2002) (§ 2254 proceeding). Ross contends that his notice of
appeal should have been considered timely or that the district court should
have reopened the time for filing an appeal under Federal Rule of Appellate
Procedure 4(a)(6) because he did not receive timely notice of the district court’s
dismissal, he diligently attempted to file a timely notice of appeal, and he
should have received the benefit of the prisoner mailbox rule. Under the law
of the case doctrine, we are bound by our prior determination that we lacked
jurisdiction because Ross’s notice of appeal was untimely. See Fuhrman v.
Dretke, 442 F.3d 893, 896-97 (5th Cir. 2006). Moreover, a Rule 60(b) motion is
not a substitute for a timely notice of appeal. See Dunn, 302 F.3d at 492-94.
      Accordingly, Ross’s motion for a COA is DENIED IN PART and DENIED
IN PART as unnecessary. To the extent that a COA was unnecessary, the



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                                No. 16-40582

judgment of the district court is AFFIRMED. Ross’s motion for leave to proceed
in forma pauperis is DENIED.




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