USA v. Andre McDaniel

Filing

UNPUBLISHED OPINION ORDER FILED. [15-20557 Affirmed] Judge: EHJ, Judge: JES, Judge: JLD. Mandate pull date is 04/14/2017; denying as unnecessary motion for certificate of appealability filed by Appellant Mr. Andre McDaniels [8145415-2] [15-20557]

Case: 15-20557

Document: 00513882232

Page: 1

Date Filed: 02/21/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20557

United States Court of Appeals
Fifth Circuit

FILED
February 21, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff-Appellee
v.
ANDRE MCDANIELS, also known as Dre,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-2952
Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Andre McDaniels, federal prisoner # 08723-045, is serving a 96-month
sentence following his convictions for conspiring to participate in sex
trafficking, transportation of an individual in interstate commerce with intent
for that individual to engage in prostitution, and coercion and enticement of an
individual to travel in interstate commerce to engage in prostitution. After the
district court denied McDaniels’s 28 U.S.C. § 2255 motion, his Federal Rule of

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20557

Document: 00513882232

Page: 2

Date Filed: 02/21/2017

No. 15-20557
Civil Procedure 59 motion, and his “Motion to Continue and Extend Time,” this
court dismissed his appeals as untimely.
McDaniels now seeks a certificate of appealability (COA) from the
district court’s denial of his Federal Rule of Civil Procedure 60(b) motion, which
motion was filed after our dismissal of his prior appeals. He does not challenge
the rejection of his claim that the district court had previously erred in denying
Rule 59 relief based on waiver grounds; accordingly, he has abandoned that
claim. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); FED. R. APP. P.
28(a)(8).
McDaniels argues that the district court erred by rejecting his argument
that he was prevented from timely appealing the denial of his § 2255 motion
by the district court’s failure to timely notify him, as required by Federal Rule
of Civil Procedure 77(d), of the order denying Rule 59 relief. Insofar as he
challenges an alleged procedural defect in his §2255 proceeding which, he
contends, prevented this court from considering the merits of his § 2255 appeal,
his motion does not constitute a successive § 2255 motion. See Gonzalez v.
Crosby, 545 U.S. 524, 531-32 (2005); Dunn v. Cockrell, 302 F.3d 491, 492 & n.1
(5th Cir. 2002). Further, because he raised this argument solely so that he
could timely appeal the denial of § 2255 relief to this court, no COA is required.
See Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007); Dunn,
302 F.3d 492. We review the denial of the Rule 60 motion for an abuse of
discretion. See Dunn, 302 F.3d at 492.
Under the law of the case doctrine, this court’s prior determination that
it lacked jurisdiction because McDaniels’s notices of appeal were untimely is
binding.

See Fuhrman v. Dretke, 442 F.3d 893, 896-97 (5th Cir. 2006).

McDaniels’s Rule 60 motion could not substitute for a timely notice of appeal,
nor could the motion be employed to circumvent the mechanisms found in

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Document: 00513882232

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Date Filed: 02/21/2017

No. 15-20557
Federal Rule of Appellate Procedure 4(a)(6) for reopening the time for filing a
notice of appeal. See Dunn, 302 F.3d at 492-94. Further, the December 2014
Rule 60 motion could not have been construed by the district court as a timely
Rule 4(a)(6) motion since the Rule 59 motion was denied in April 2014, and
McDaniels concedes that he received the denial order no later than July 2014.
See Rule 4(a)(6)(B). To the extent that McDaniels argues that (1) the district
court should have construed his “Motion to Continue and Extend Time,” as a
Rule 4(a)(6) motion, and (2) the district court’s failure to timely notify him of
the order denying Rule 59 relief automatically triggered Rule 4(a)(6), his
arguments will not be considered because he raises them for the first time in
this court. See Yohey, 985 F.2d at 225.
Accordingly,

McDaniels’s

motion

for

a

COA

is

DENIED

UNNECESSARY, and the judgment of the district court is AFFIRMED.

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AS