IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20128

Summary Calendar

LUIS SANTOS LAGAITE, JR.,

Plaintiff-Appellant

v.

RICK THALER,DIRECTOR,TEXAS DEPARTMENT OF CRIMINALJUSTICE,

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., Texas prisoner # 762508, seeks a certificate of

appealability (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 moves for authorization to file a successive § 2254

application. Lagaite was convicted in 1996 after a jury trial of capital murder

and sentenced to life imprisonment.

United States Court of Appeals

Fifth Circuit

F I L E D

January 10, 2013

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. 12-20128

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

claims 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 tolled while 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 raised for the first time before this court. See

Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003).

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) motion, was an abuse of discretion. 

See Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011); see also Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Lagaite has not made such a showing. See

FED. R. CIV. P. 60(c)(1). Accordingly, his motion for a COA is denied.

To obtain authorization to 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

2

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No. 12-20128

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 file 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

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