IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10019

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PASCUAL SAMUEL GUERRERO,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:08-CV-140

USDC No. 1:06-CR-58-1

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:*

Pascual Samuel Guerrero, federal prisoner # 07431-097, moves this court

for leave to proceed in forma pauperis (IFP) on appeal from the district court’s

order denying a motion pursuant to Rule 60(b) of the Federal Rules of Civil

Procedure seeking to reinstate the time to file an appeal from a judgment

denying relief pursuant to 28 U.S.C. § 2255. A certificate of appealability is not

necessary for this appeal to proceed, as the sole purpose of Guerrero’s Rule 60(b)

United States Court of Appeals

Fifth Circuit

F I L E D

September 7, 2012

Lyle W. Cayce

Clerk

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. 12-10019

motion was “to reinstate appellate jurisdiction over the original denial of habeas

relief.” Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007). 

By moving to proceed IFP, Guerrero is challenging the district court’s

certification that the appeal is not taken in good faith. See Baugh v. Taylor, 117

F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5). This court’s inquiry into

the litigant’s good faith “is limited to whether the appeal involves ‘legal points

arguable on their merits (and therefore not frivolous).’” Howard v. King, 707

F.2d 215, 220 (5th Cir. 1983). 

The district court construed Guerrero’s motion as sounding under Rule

60(b)(1). The court ruled that the motion was untimely and, moreover, that

Guerrero had failed to demonstrate excusable neglect that would warrant relief

as he had failed to comply with his responsibility to keep the court informed of

his current address. Guerrero disagrees with the district court’s

characterization of his motion, arguing that the court should have construed the

motion as seeking relief under Rule 60(b)(6). For the first time on appeal, he

argues that he provided the clerk of court with his new address and that the

district court should not have denied relief without allowing him an opportunity

to prove that he notified the court of the address change. 

Neither Rule 60(b)(1) nor Rule 60(b)(6) provides a substitute for a timely

appeal. See Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002); Dunn v. Cockrell,

302 F.3d 491, 492 (5th Cir. 2002). This is particularly true when, as in this case,

“the Rule 60(b) motion is made after time for appeal has expired, and the movant

neither complains of any denial of a full and fair hearing before the district court

nor seeks by the motion to have the district court alter its ruling, but rather asks

only that the order be vacated and reentered.” U.S. v. O’Neil, 709 F.2d 361, 373

(5th Cir. 1983). 

Guerrero has not demonstrated any arguably nonfrivolous claim for

appeal. See Howard, 707 F.2d at 220. Accordingly, his request for leave to

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No. 12-10019

proceed IFP on appeal is denied, and the appeal is dismissed. See Baugh, 117

F.3d at 202 n.24; 5TH CIR. R. 42.2.

IFP DENIED; APPEAL DISMISSED.

3

Case: 12-10019 Document: 00511978674 Page: 3 Date Filed: 09/07/2012