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

No. 11-10124 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ROQUE RANGEL, JR., also known as Rock, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 1:02-CR-3-17

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Roque Rangel, Jr., federal prisoner # 28301-177, has moved for a
c e rt if i cate of appealability (COA) to appeal the district court’s denial of hi s motion filed pursuant to Rule 60(b) o f th e Federal Rules of Civil Procedure, in which he sought reconsideration of this court’s dismissal, for lack of a timely notice of appeal, of his appeal in a 28 U.S.C. § 2255 proceeding. Because Rangel essentially seeks to reopen the time for filing a timely notice of appeal, he does not need a COA to appeal the district court’s ruling. See Dunn v. Cockrell , 302 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 2 3, 2 011 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: 11-10124 Document: 00511611430 Page: 1 Date Filed: 09/23/2011No. 11-10124

F.3d 491, 492-93 (5th Cir. 2002). His motion for a COA is therefore DENIED as unnecessary. When necessary, this court must sua sponte examine the basis of its jurisdiction. Mosley v. Cozby , 813 F.2d 659, 660 (5th Cir. 1987). Rangel’s Rule 60(b) motion, submitted for mailing on December 17, 2010, and directed to this court, if liberally construed, was sufficient to evince timely his intent to appeal from the denial of the Rule 60(b) motion filed in the district court. See Bailey v. Cain , 609 F.3d 763, 765-66 (5th Cir. 2010); Eleby v. American Medical Systems, Inc. , 79 5 F

. 2 d 4 1 1 , 412 (5th Cir. 1986); F E D
. R. AP P
. P. 4(a)(1)(B), (c), and (d). We, therefore, have jurisdiction to review the district court’s denial of Rangel’s Rule 60(b) motion. Our review is for an abuse of discretion. Eleby , 795 F.2d at 414. Rangel renews his claim that the applicable limitations period for filing a timely notice of appeal is subject to equitable tol l i n g , i n light of Holland v. Florida , 130 S. Ct. 2549, 2562 (2010), and that he is entitled to equitable tolling because he was in transit when he was required to file a timely notice of appeal from the denial of his § 2255 motion. Rangel is mistaken. The time for filing a notice of appeal in a civil case i s n o t s ubj e c t to equitable tolling, and a timely notice of appeal is a jurisdictional prerequisite to appeal. Bowles v. Russell , 551 U.S. 205, 213-14 (2007). Moreover, the district c o u rt was without power to correct any error a l l e g e dly made by this court with respect to this court’s jurisdiction. The district court did not abu s e its discretion in denying Rangel’s Rule 60(b) motion. See Eleby , 795 F.2d at 414. Rangel’s appeal lacks any arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, it is DISMISSED. See5 T H C I R
. R. 42.2.

2 Case: 11-10124 Document: 00511611430 Page: 2 Date Filed: 09/23/2011