Keys v. Quarterman

* 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this opinion should not be published and is not precedent except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
F I L E D
August 15, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40725
Summary Calendar
ROBERT DANIEL KEYS,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CV-100
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Robert Daniel Keys, Texas prisoner # 873144, filed a
28 U.S.C. § 2254 application which the district court dismissed
as time-barred. This court denied Keys’s request for a
certificate of appealability (COA) from the dismissal of that
application. Keys subsequently filed in the district court a
motion for relief from judgment pursuant to FED. R. CIV. P.
60(b)(1). When the district court denied that motion, Keys filed
a motion for rehearing by a three-judge panel, which the district

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No. 05-40725
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court also denied. Keys now seeks a certificate of appealability
(COA) to appeal the district court’s denial of his motion for
rehearing by a three-judge panel.
Keys cites to no authority nor has any been found
establishing his right to a three-judge panel rehearing of the
denial of his Rule 60(b)(1) motion. As such, his motion was
unauthorized. Keys thus has appealed from the denial of a
meaningless, unauthorized motion. See United States v. Early,
27 3F.3d 140, 142 (5th Cir. 1994). Although the district court
denied the motion on the merits, it should have denied the motion
for lack of jurisdiction. Id. However, this court can and does
affirm on the alternative basis. Id. Keys’s request for a COA
is denied as unnecessary. See 28 U.S.C. § 2253(c)(1)(A). Keys’s
motions for the appointment of counsel and for an en banc
consideration of his COA motion are also denied. See
FED. R. APP. P. 35(a); 5TH CIR. R. 35.6.
COA DENIED AS UNNECESSARY; AFFIRMED; MOTIONS FOR APPOINTMENT
OF COUNSEL AND EN BANC CONSIDERATION DENIED.

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