### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 F e d e r a l R u les of Civil Procedure seeking to re i n s t at e 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) U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 7 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-10019 Document: 00511978674 Page: 1 Date Filed: 09/07/2012No. 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. 200 7). 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); F E D
. R. AP P
. 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).’” Howar d v . King, 707 F.2d 215, 220 (5th Cir. 1983). The district court con s t r u e d Guerrero’s motion as sounding under Rule 60(b)(1). The court ruled that the motion was untimely a n d , m oreover, 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 distri c t court’s characterization of his motion, arguing that the court should have construed the mot i o n a s s e e king relief under Rule 60(b)(6). For the first time on appeal, he argues that he provided the clerk of cou rt w i th h i s 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 demonst r ated any arguably nonfrivolous claim for appeal. Se e H

o w a r d , 707 F.2d at 220. Accordingly, his request for leave to

2 Case: 12-10019 Document: 00511978674 Page: 2 Date Filed: 09/07/2012No. 12-10019

proceed IFP on appeal is denied, and the appeal is dismissed. See Baugh , 117 F.3d at 202 n.24; 5 T H C I R
. R. 42.2. IFP DENIED; APPEAL DISMISSED.

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