### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 12-20128 Summary Calendar

LUIS SANTOS LAGAITE, JR., Plaintiff-Appellant

v. RI C K THAL E R , D IR E C T O R , T E X AS D E PARTM E NT O F C RIMI NAL JU S TI C E , CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

Appeals from the United States District Court for the Southern District of Texas USDC No. 4:02-CV-1948

Before JOLLY, DAVIS, and OWEN, Circuit Judges. PER CURIAM: * Luis Santos Lagaite, Jr., T e x a s prisoner # 762508, seeks a certificate of appealabil i ty (COA) to appeal the district court’s denial of his motion for reconsideration of its 2002 dismissal of his 28 U.S.C. § 2254 application as time barred. He alternatively m o v e s f o r authorization to file a successive § 2254 appli c a t i on. Lagaite was convicted in 1996 after a jury trial of capital murder and sentenced to life imprisonment. 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 Janu ary10 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat 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: 12-20128 Document: 00512109101 Page: 1 Date Filed: 01/10/2013No. 12-20128

Lagaite argues that the district court erred in denying his motion for reconsideration of the dismissal of his second § 2254 application as time barred because, when it dismissed his first § 2254 application without prejudice, it did not advise him of the possibility that, absent equitable tolling, any subsequent § 2254 application could be time barred or that he could dismiss his unexhausted

c laims and proceed with his exhausted claims. For the first time in his COA motion to this court, he also takes issue with some of the factual findings by the district court in connection with its dismissal of his second § 2254 application as time barred, and he argues that the Antiterrorism and Effective Death Penalty Act (AEDPA) limitations period should have been tolle d w hile his first § 2254 application was pending. In addition, for the first time before this court, he asserts that, in 2011, he discovered a 2003 letter from his appointed counsel to the trial court, advising the court that there was no biological evidence available in his case to subject to DNA testing. In connection with Lagaite’s motion for a COA, we do not consider claims r a i s e d f o r the first time before this court. See Henderson v. Cockrell , 333 F.3d 592, 605 (5th Cir. 200 3). To obtain a COA, Lagaite must show that a jurist of reason could conclude that the district court’s denial of his motion for reconsideration, construed here

as a Federal Rule of Civil Procedure 60(b) mo tion, was an abuse of discretion. See Hernandez v. Thaler , 630 F.3d 420, 428 (5th Cir. 2011); see als o S lack v. McDaniel , 529 U.S. 473, 484 (2000). Lagaite has not made such a showing. See F E D
. R. C IV
. P. 60(c)(1). Accordingly, his motion for a COA is denied. To obtain authorization t o file a successive § 2254 application, Lagaite must make a prima facie showing that either: (1) his claims rely on a new rule of constitutional law that was made retroactive to cases on collateral review by the Supreme Court and was previously unavailable, or (2) the factual predicate for his claims could not have been discovered previously through due diligence and the underlying facts, if proven, would establish by clear and convincing

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evidence that, but for constitutional error, no reasonable trier of fact would have found him guilty of the underlying offense. 28 U.S.C. § 2244(b)(2), (b)(3)(C). Lagaite’s request for leave to file a successive § 2254 application is based upon his alleged 2011 discovery of counsel’s 2003 letter, advising the state trial court that there was no biological evidence available in his case to subject to DNA testing. As Lagaite has not made the required showing under § 2244(b)(2), his alternate motion for authorization to f ile a successive § 2254 application is denied. See § 2244(b)(3)(C). His motion for the appointment of counsel is also denied. COA DENIED; MOTION FOR AUTHORIZATION TO FILE A SECOND OR SUCCESSIVE § 2254 APPLICATION DENIED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.

3 Case: 12-20128 Document: 00512109101 Page: 3 Date Filed: 01/10/2013