Ricky Barnett v. Lorie Davis, Director


UNPUBLISHED OPINION ORDER FILED. [16-41193 Dismissed as Frivolous] Judge: JLD, Judge: LHS, Judge: SAH. Mandate pull date is 10/31/2017; denying motion to proceed IFP filed by Appellant Mr. Ricky Allen Barnett [8412908-2]; denying as unnecessary motion for certificate of appealability filed by Appellant Mr. Ricky Allen Barnett [8412904-2] [16-41193]

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Case: 16-41193 Document: 00514189651 Page: 1 Date Filed: 10/10/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-41193 United States Court of Appeals Fifth Circuit FILED October 10, 2017 Lyle W. Cayce Clerk RICKY ALLEN BARNETT, Petitioner-Appellant v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:12-CV-167 Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM: * Ricky Allen Barnett, Texas prisoner # 01541732, moves for a certificate of appealability (COA) and leave to proceed in forma pauperis (IFP) on appeal of the district court’s denial of his motion to reopen the appeal period pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure. Rule 4(a)(6) is permissive and compliance with Rule 4(a)(6) does not require the district court to grant the motion, we review the district court’s denial of the motion for an 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-41193 Document: 00514189651 Page: 2 Date Filed: 10/10/2017 No. 16-41193 abuse of discretion. See In re Jones, 970 F.2d 36, 39 (5th Cir. 1992). Barnett did not file his motion to reopen the appeal period within 180 days of the entry of the judgment or within 14 days after he received notice of the judgment and thus did not satisfy the requirements of Rule 4(a)(6)(2). Accordingly, the district court’s denial of the motion was not an abuse of discretion. Rodriguez v. Johnson, 104 F.3d 694, 696 (5th Cir. 1997). The motion for a COA is DENIED AS UNNECESSARY. See Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007); Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002). Even if a COA were required, Barnett has not shown that one should issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). He also has not shown that there is a nonfrivolous issue for appeal concerning the denial of his motion to reopen. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Barnett’s motion for IFP is DENIED. As there is no nonfrivolous issue for appeal, the appeal is DISMISSED AS FRIVOLOUS. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2. 2

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