Rabel v. Dretke , 166 F. App'x 148 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-10373
Summary Calendar
TEDDY JOE RABEL,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CV-953
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Teddy Joe Rabel was convicted in Texas state court of felony
murder and sentenced to ten years of imprisonment. Subsequently,
he challenged his conviction in a 28 U.S.C. § 2254 application.
Noting certain deficiencies in the application, the magistrate
judge order Rabel to correct the deficiencies. Rabel failed to
comply with the order, and the district court dismissed the
application for want of prosecution. Rabel filed a FED. R. CIV.
*
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this opinion should not be published and is not precedent except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.
No. 05-10373
-2-
P. 60(b) motion, arguing that he should be relieved from the
judgment based on counsel’s excusable neglect. Counsel stated
that he was unaware of the existence of the order and only became
aware of the order upon receiving the dismissal order from the
district court. The district court denied the motion. Rabel
then filed a notice of appeal.
Rabel seeks a certificate of appealability from this court.
However, our jurisdiction is limited to the denial of the FED. R.
CIV. P. 60(b) motion because the notice of appeal was untimely as
to the dismissal of Rabel’s 28 U.S.C. § 2254 application. Dison
v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994). With regard to his
argument challenging the district court’s denial of the FED. R.
CIV. P. 60(b) motion, a COA is unnecessary. See Dunn v.
Cockrell, 302 F.3d 491, 492 (5th Cir. 2002).
This court reviews the denial of a FED. R. CIV. P. 60(b)
motion for abuse of discretion. Seven Elves, Inc. v. Eskenazi,
635 F.2d 396, 402 (5th Cir. 1981). Rabel filed his motion
pursuant to FED. R. CIV. P. 60(b)(1), which permits a court to
relieve a party from final judgment for excusable neglect. The
district court determined that Rabel was not entitled to relief
from judgment because Rabel failed to explain why the order to
correct the deficiencies in the application was not received but
the following orders from the district court were received. The
documents mailed to Rabel’s counsel were not returned. The
district court also noted that Rabel’s motion was not supported
No. 05-10373
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by an affidavit. This court also notes that the notice of appeal
was untimely filed as to the dismissal of the 28 U.S.C. § 2254application. The pattern of neglect exhibited by Rabel’s counsel
does not warrant relief from judgment based on excusable neglect
under FED. R. CIV. P. 60(b). Because the district court did not
abuse its discretion in denying the motion, the judgment is
AFFIRMED. Rabel’s request for a COA is DENIED AS UNNECESSARY.