IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20557

UNITED STATES OF AMERICA,

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.

United States Court of Appeals

Fifth Circuit

FILED

February 21, 2017

Lyle W. Cayce

Clerk

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No. 15-20557

2

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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3

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 AS 

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

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