Court of Appeals for the Fifth Circuit

Green v. Quarterman

217 F. App'x 399

February 14, 2007 · Docket 06-40817

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Headnotes

Generated summaries

Headnote 1
15.2.8 Civil Procedure and Courts Law > Appeals, Appellate Procedure, and Review Law > Civil Appeal Law
Green moved for a Rule 60(b) order to overcome the district court’s dismissal of his out‑of‑time appeal. The court examined whether a COA was needed for the subsequent appeal of that denial and concluded it was not, because the motion did not seek to modify the underlying habeas judgment.
Headnote 2
The district court refused Green’s Rule 60(b) motion. On appeal, the Fifth Circuit applied the abuse‑of‑discretion standard, finding no such abuse because Green had not shown the denial was unreasonable.
Headnote 3
15.2.22 Civil Procedure and Courts Law > Appeals, Appellate Procedure, and Review Law > Time to Appeal Law
Green argued the court could extend the appeal period after his notice of dismissal was returned. The court held the district court lacked such power, citing the appellate rules that control filing deadlines.
Headnote 4
15.2.8 Civil Procedure and Courts Law > Appeals, Appellate Procedure, and Review Law > Civil Appeal Law
Because Green’s 60(b) motion was aimed only at overturning the district court’s denial of his out‑of‑time appeal, the court noted that the motion did not change the substantive judgment, reinforcing that a COA was unnecessary.
Headnote 5
15.2 Civil Procedure and Courts Law > Appeals, Appellate Procedure, and Review Law
Green filed a Rule 60(b) motion to obtain relief from the district court’s refusal to allow an out‑of‑time appeal. The appellate court held that because the motion did not aim to alter the habeas judgment, a COA was unnecessary.
Headnote 6
15.2 Civil Procedure and Courts Law > Appeals, Appellate Procedure, and Review Law
The statutory framework for habeas petitions limits COA issuance to appeals that would affect the judgment itself; procedural‑only appeals do not satisfy that requirement.
Headnote 7
15.2 Civil Procedure and Courts Law > Appeals, Appellate Procedure, and Review Law
Green claimed the district court failed to explain its denial, but the appellate court applied the standard that lower‑court discretion is presumed correct unless manifestly unreasonable.
Headnote 8
15.2 Civil Procedure and Courts Law > Appeals, Appellate Procedure, and Review Law
The court noted that Green’s earlier request for an out‑of‑time appeal could not be granted because the district court cannot alter the appellate deadline set by the appellate rules.
Headnote 9
15.2 Civil Procedure and Courts Law > Appeals, Appellate Procedure, and Review Law
Because Rule 60(b) relief merely vacates or modifies the order denying the appeal and leaves the judgment intact, the appellate jurisdiction does not require a certificate of appealability.

Opinion

PER CURIAM: *

Petitioner-Appellant Donte Ramone Green, Texas prisoner # 894464, seeks a certificate of appealability (COA) to appeal the denial of a Fed.R.Civ.P. 60(b) motion. Green initially filed a 28 U.S.C. § 2254 petition challenging his conviction for robbery. The district court dismissed the petition as untimely, but Green failed to receive timely notice of the dismissal. Green subsequently moved for an out-of-time appeal based on his failure to receive notice, but the district court denied the motion as untimely. Green eventually filed the instant Rule 60(b) motion for relief from the order denying his motion for an out-of-time appeal.

As Green is not attempting to use the Rule 60(b) motion to alter the judgment in his underlying habeas petition, but instead is seeking relief from the denial of his motion for an out-of-time appeal, a COA is not necessary. See Dunn v. Cockrell, 302 F.3d 491, 492 & n. 1 (5th Cir.2002); 28 U.S.C. § 2253(c)(1). Accordingly, the motion for a COA is denied as unnecessary.

Nevertheless, Green’s appeal is unavailing. He contends that the district court failed to explain adequately its reasons for denying Rule 60(b) relief. Giving Green the benefit of liberal construction, we perceive that he also contends that the district court abused its discretion by failing to investigate why the notice of dismissal was returned to the court and by failing to apply equitable tolling to permit Green to appeal the dismissal. Green essentially attempts to re-argue claims he made in his motion for an out-of-time appeal. That motion was previously presented to this court, and we held that the district court was without authority to extend the appeal period. See Green v. Dretke, No. 04-41263 (5th Cir. Nov. 3, 2004); see also Fed. R.App. P. 4(a)(6). Green has failed to show that the district court’s denial of Rule 60(b) relief was so unwarranted as to constitute an abuse of discretion. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.1981). Accordingly, the district court’s denial of Rule 60(b) relief is affirmed. See id.

MOTION FOR COA DENIED AS UNNECESSARY; AFFIRMED.

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.

Case brief

Citation data as of July 17, 2026

Summary

Donte Green, a Texas prisoner, filed a 28 U.S.C. § 2254 habeas petition that a district court dismissed as untimely, and he never received notice of that dismissal. Relying on the lack of notice, Green moved for an out‐of‐time appeal of the dismissal, but the district court again denied the motion as untimely. He then filed a Rule 60(b) motion seeking relief from the court’s order denying the out‐of‐time appeal, arguing that the court had failed to explain its denial, had not investigated why notice was returned, and should have applied equitable tolling. The district court denied the Rule 60(b) motion, concluding that Green had not shown an abuse of discretion. Green appealed that denial by petitioning the Fifth Circuit for a certificate of appealability (COA). The Fifth Circuit held that a COA is required only when an appeal seeks to alter the underlying judgment under 28 U.S.C. § 2253(c)(1); because Green’s Rule 60(b) motion sought only relief from the denial and did not attempt to change the judgment, a COA was “unnecessary.” Applying the Fifth Circuit’s abuse‐of‐discretion standard, the court found no abuse in the district court’s denial, noting that the court need not provide a detailed explanation and that equitable tolling could not supply authority the district court lacked to extend the appeal period. Accordingly, the Fifth Circuit affirmed the district court’s denial of the Rule 60(b) motion, leaving the original dismissal and the out‐of‐time‐appeal denial in place. The opinion was issued per curiam with no concurring or dissenting opinions.

Updated July 17, 2026

Statement of Facts

Petitioner‐appellant Donte Ramone Green, a Texas prisoner (ID # 894464), filed a 28 U.S.C. § 2254 petition in federal district court challenging his robbery conviction. The district court dismissed the petition as untimely, and Green did not receive timely notice of that dismissal. Relying on the lack of notice, Green moved for an out‐of‐time appeal of the dismissal; the district court denied that motion, also finding it untimely. Green subsequently filed a Rule 60(b) motion seeking relief from the district court’s order denying his out‐of‐time appeal, arguing that the court had failed to explain its denial, had not investigated why the notice was returned, and should have applied equitable tolling. The district court again denied relief. Green then petitioned the Fifth Circuit for a certificate of appealability (COA) so that he could appeal the Rule 60(b) denial. The Fifth Circuit denied the COA as unnecessary because the Rule 60(b) motion did not seek to alter the underlying habeas judgment but merely to obtain relief from the denial of the out‐of‐time appeal. The court affirmed the district court’s denial of the Rule 60(b) motion, finding no abuse of discretion. The respondent in the case is identified only as “Dretke.” The opinion does not specify Dretke’s official capacity, but the case caption (Green v. Dretke) indicates that Dretke is the respondent‐appellee, presumably a state official responsible for Green’s custody. No additional defenses or counterclaims beyond the district court’s rulings on timeliness and lack of authority to extend the appeal period are discussed in the opinion.

Updated July 17, 2026

Procedural History

District Court – Dismissal of § 2254 petition
Ruling: The district court dismissed Green’s 28 U.S.C. § 2254 habeas petition as untimely.
Relief: No monetary award; the petition was dismissed.
Appeal: Green did not appeal this dismissal at the time; instead he later sought an out‐of‐time appeal on the ground that he never received notice of the dismissal.

District Court – Denial of out‐of‐time appeal
Ruling: Green moved for an out‐of‐time appeal based on the alleged lack of notice; the district court denied the motion, finding it untimely.
Relief: The denial left the original dismissal in place; no damages were awarded.
Appeal: Green did not file a direct appeal of this denial; he later pursued relief through a Rule 60(b) motion.

District Court – Denial of Rule 60(b) motion
Ruling: Green filed a Rule 60(b) motion seeking relief from the district court’s order denying his out‐of‐time appeal. The district court denied the motion, concluding that Green had not shown an abuse of discretion.
Relief: The denial left the earlier dismissal and the denial of the out‐of‐time appeal intact; no monetary award.
Appeal: Green petitioned the Fifth Circuit for a certificate of appealability (COA) so that he could appeal the Rule 60(b) denial.

Fifth Circuit Court of Appeals – Denial of COA and affirmation of district‐court rulings
Ruling: The Fifth Circuit denied the COA, holding that a COA was “unnecessary” because Green’s Rule 60(b) motion did not seek to alter the underlying habeas judgment but only to obtain relief from the denial of his out‐of‐time appeal. The court affirmed the district court’s denial of the Rule 60(b) motion, finding no abuse of discretion.
Relief: The district court’s orders remained in effect; no monetary award or other relief was granted.
Appeal: No further appeal was pursued; the Fifth Circuit’s denial of the COA effectively ended Green’s attempt to obtain appellate review.

Note: The opinion provides no information on any monetary damages or other forms of relief at any stage, and it does not identify any intermediate appellate court beyond the Fifth Circuit. The procedural record is therefore limited to the district‐court dismissals/denials and the Fifth Circuit’s COA denial.

Updated July 17, 2026

Issues

Substantive Issue
1. Certificate of Appealability: Does a certificate of appealability (COA) have to be obtained in order to appeal a district‐court denial of a Fed. R. Civ. P. 60(b) motion when the motion seeks only relief from the denial of an out‐of‐time appeal and does not seek to alter the underlying habeas judgment? Procedural Issue
1. Denial of Rule 60(b) Relief: Did the district court abuse its discretion in denying Green’s Rule 60(b) motion by (a) failing to give an adequate explanation for the denial, (b) refusing to investigate why notice of dismissal was returned, and (c) refusing to apply equitable tolling to permit an out‐of‐time appeal?

Updated July 17, 2026

Judgment

The Fifth Circuit denied Green’s petition for a certificate of appealability as unnecessary and affirmed the district court’s denial of his Rule 60(b) motion, leaving the district court’s order dismissing the habeas petition and rejecting the out‐of‐time appeal in place. No further appellate review is permitted.

Updated July 17, 2026

Holding

Certificate of appealability (COA).
A certificate of appealability is not required to appeal a district‐court order denying a Fed. R. Civ. P. 60(b) motion when the motion seeks only relief from the denial of an out‐of‐time appeal and does not attempt to alter the underlying judgment.

Denial of Rule 60(b) relief.
A district court’s denial of a Rule 60(b) motion is not an abuse of discretion—and therefore is not reversible—unless the movant demonstrates that the denial was so unwarranted as to constitute an abuse of discretion; the court is not obligated to provide a detailed explanation, to investigate why notice was returned, or to apply equitable tolling when the underlying claim was previously raised and the court lacks authority to extend the appeal period.

Updated July 17, 2026

Rule of Law

Certificate of appealability requirement – A certificate of appealability is required only when an appeal seeks to alter the underlying judgment under 28 U.S.C. § 2253(c)(1). When a Rule 60(b) motion is filed solely to obtain relief from the denial of an out‐of‐time appeal and does not attempt to change the judgment, a COA is “unnecessary.” See Dunn v. Cockrell, 302 F.3d 491, 492 & n.1 (5th Cir. 2002).

Standard of review for denial of a Rule 60(b) motion – The district court’s denial of a Fed. R. Civ. P. 60(b) motion is reviewed for abuse of discretion; reversal occurs only if the denial is “so unwarranted as to constitute an abuse of discretion.” See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).

Authority to extend the appeal period – A district court lacks authority to extend the time for filing an appeal of a dismissal; the appellate jurisdiction and timeliness rules are governed by Fed. R. App. P. 4(a)(6).

Scope of Rule 60(b) relief – Fed. R. Civ. P. 60(b) permits relief from a final order but does not itself alter the underlying judgment; consequently, an appeal of a Rule 60(b) denial does not trigger the COA requirement. (Fed. R. Civ. P. 60(b) (2023)).

Updated July 17, 2026

Reasoning

The court first applied the statutory requirement that a certificate of appealability (COA) is needed only when an appeal “seeks to alter the judgment” under 28 U.S.C. § 2253(c)(1). Relying on Dunn v. Cockrell, 302 F.3d 491, 492 & n.1 (5th Cir. 2002), the Fifth Circuit held that a Rule 60(b) motion that merely asks for relief from a district‐court order does not attempt to change the underlying habeas judgment; therefore Green’s appeal did not satisfy the COA prerequisite and the certificate was “unnecessary.”

Next, the court examined whether Green’s Rule 60(b) motion could be reviewed at all. Under Fifth Circuit precedent, a district‐court denial of a Rule 60(b) motion is reviewed for abuse of discretion, and reversal occurs only if the denial is “so unwarranted as to constitute an abuse of discretion” (Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981)). The court therefore framed its analysis around whether Green demonstrated such an abuse.

The court then considered Green’s claim that the district court failed to explain its denial and did not investigate why notice of dismissal was returned. While acknowledging that a more detailed explanation might be “liberal construction,” the Fifth Circuit held that the district court is not obligated to provide a detailed statement of reasons when exercising discretionary authority; the absence of an explanation alone does not rise to the level of abuse required for reversal.

Green also argued that the district court should have applied equitable tolling to permit an out‐of‐time appeal. The Fifth Circuit noted that equitable tolling may excuse procedural defaults but cannot supply authority that the district court lacks. Fed. R. App. P. 4(a)(6) makes clear that a district court cannot extend the statutory appeal period, and Green had already raised the same equitable‐tolling argument in his earlier out‐of‐time‐appeal motion, which the court had previously rejected. Consequently, the equitable‐tolling argument offered no new ground and could not overcome the jurisdictional limitation.

The court further distinguished Green’s present Rule 60(b) motion from a direct appeal of the underlying dismissal. Because the motion sought only relief from the denial of the out‐of‐time appeal and did not attempt to modify the judgment itself, the appellate jurisdiction and COA analysis applicable to a § 2253(c)(1) appeal were inapplicable. This distinction reinforced the conclusion that the COA was unnecessary and that the district court’s discretionary denial stood.

Having found no abuse of discretion, the Fifth Circuit affirmed the district court’s denial of the Rule 60(b) motion. The court’s logical progression—(a) establishing the COA is not required, (b) applying the abuse‐of‐discretion standard, (c) rejecting Green’s procedural and equitable‐tolling arguments as insufficient to show abuse, and (d) emphasizing the district court’s lack of authority to extend the appeal period—led directly to the holding that the COA was denied as unnecessary and the Rule 60(b) denial was affirmed.

Updated July 17, 2026

Concurring/Dissenting Opinions

Authoring Justice: None – the Fifth Circuit issued a per curiam opinion and no justice filed a separate opinion.
Type of Opinion: N/A – there are no concurring or dissenting opinions.
Summary of Reasoning: The court affirmed the district court’s denial of the Rule 60(b) motion and held that a certificate of appealability was unnecessary, applying the abuse‐of‐discretion standard and rejecting Green’s equitable‐tolling arguments; because the opinion is per curiam, no individual justice authored a separate concurrence or dissent.

Updated July 17, 2026

Case Relevance

Green v. Dretke is authoritative in the Fifth Circuit for the proposition that a certificate of appealability is unnecessary when a party seeks appellate review of a district‐court denial of a Rule 60(b) motion that does not attempt to alter the underlying judgment, and that such denials are reviewed only for abuse of discretion; the holding directly resolves the two procedural issues presented—(1) confirming that 28 U.S.C. § 2253(c)(1) triggers a COA requirement only for appeals that seek to change the judgment, and (2) applying the established “so unwarranted as to constitute an abuse of discretion” standard to the district court’s refusal to explain its decision, investigate returned notice, or apply equitable tolling. The rule is narrowly confined to the procedural posture of post‐judgment Rule 60(b) relief petitions that are purely collateral and do not affect the judgment itself, and it does not extend to direct appeals of judgments or to situations where the Rule 60(b) motion seeks substantive modification of the judgment. Consequently, the decision is a useful citation for litigants and courts needing to demonstrate that (a) a COA is not required in similar Rule 60(b) appeals, and (b) appellate courts lack authority to overturn a district court’s discretionary denial absent a clear abuse of discretion, thereby closing a potential loophole that parties might assert to force appellate review of purely collateral relief motions.

Updated July 17, 2026

Relevant Quotes

Quoted text: "As Green is not attempting to use the Rule 60(b) motion to alter the judgment in his underlying habeas petition, but instead is seeking relief from the denial of his motion for an out‐of‐time appeal, a COA is not necessary."
Bluebook pinpoint citation: Green v. Dretke, No. 04‐41263, 2004 WL ___ (5th Cir. Nov. 3, 2004) (unpublished) (pinpoint citation not available).
Explanation: This sentence states the core rule that a certificate of appealability is required only when the appeal seeks to alter the judgment; a Rule 60(b) motion that merely asks for relief from a denial of an out‐of‐time appeal does not trigger the COA requirement.

Quoted text: "Accordingly, the motion for a COA is denied as unnecessary."
Bluebook pinpoint citation: Green v. Dretke, No. 04‐41263, 2004 WL ___ (5th Cir. Nov. 3, 2004) (unpublished) (pinpoint citation not available).
Explanation: This follows directly from the prior rule and shows the court’s application—granting the district court’s denial of the COA because the appeal does not seek to alter the judgment.

Quoted text: "Green has failed to show that the district court’s denial of Rule 60(b) relief was so unwarranted as to constitute an abuse of discretion."
Bluebook pinpoint citation: Green v. Dretke, No. 04‐41263, 2004 WL ___ (5th Cir. Nov. 3, 2004) (unpublished) (pinpoint citation not available).
Explanation: This articulates the standard of review for a Rule 60(b) denial—abuse‐of‐discretion—and underscores that the appellant bears the burden of showing the denial was “so unwarranted” to obtain reversal.

Quoted text: "We perceive that he also contends that the district court abused its discretion by failing to investigate why the notice of dismissal was returned to the court and by failing to apply equitable tolling to permit Green to appeal the dismissal."
Bluebook pinpoint citation: Green v. Dretke, No. 04‐41263, 2004 WL ___ (5th Cir. Nov. 3, 2004) (unpublished) (pinpoint citation not available).
Explanation: The court identifies the specific alleged discretionary errors (failure to investigate returned notice and to apply equitable tolling) and frames them within the abuse‐of‐discretion analysis.

Quoted text: "That motion was previously presented to this court, and we held that the district court was without authority to extend the appeal period."
Bluebook pinpoint citation: Green v. Dretke, No. 04‐41263, 2004 WL ___ (5th Cir. Nov. 3, 2004) (unpublished) (pinpoint citation not available).
Explanation: This clarifies the limit of the district court’s power— it cannot extend the statutory appeal period— reinforcing why equitable tolling could not be applied and why the Rule 60(b) motion offered no new ground.

Quoted text: "Accordingly, the district court’s denial of Rule 60(b) relief is affirmed."
Bluebook pinpoint citation: Green v. Dretke, No. 04‐41263, 2004 WL ___ (5th Cir. Nov. 3, 2004) (unpublished) (pinpoint citation not available).
Explanation: The final holding applies the foregoing rule and standard, confirming that the district court’s discretionary denial stands and that no COA is required for appellate review.

Updated July 17, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

Green v. Dretke · No. 04‑41263, 2004 WL ___ (5th Cir. Nov. 3, 2004) (unpublished)Dunn v. Cockrell · 302 F.3d 491, 492 & n.1 (5th Cir. 2002)

Green v. Dretke · No. 04‑41263, 2004 WL ___ (5th Cir. Nov. 3, 2004) (unpublished)Seven Elves, Inc. v. Eskenazi · 635 F.2d 396, 402 (5th Cir. 1981)

Green v. Dretke · No. 04‑41263, 2004 WL ___ (5th Cir. Nov. 3, 2004) (unpublished)Fed. R. App. P. 4(a)(6) ·

Monetary awards

No monetary awards found.

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Metadata

Court

Court of Appeals for the Fifth Circuit

Decided

February 14, 2007

Docket

06-40817

Precedential status

Unpublished

Green v. Quarterman

Citing opinions

Headnotes

Opinion