Summary Calendar UNITED STATES OF AMERICA v. Mark Linnear Hays

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10728
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARK LINNEAR HAYS
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-462
USDC No. 3:95-CR-141-2
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mark Linnear Hays, federal prisoner # 46431-019, appeals the district
court’s order denying his motion under Federal Rule of Civil Procedure 60(b) to
alter or amend its prior judgment denying Hays’s 28 U.S.C. § 2255 motion to
vacate his 1996 convictions and sentences for violating the Hobbs Act, using and
carrying a firearm in relation to a crime of violence, and being a felon in
possession of a firearm.
United States Court of Appeals
Fifth Circuit
F I L E D
March 24, 2008
Charles R. Fulbruge III
Clerk

-- 1 of 2 --

No. 06-10728
2
Hays raises three arguments on appeal. First, Hays argues that the
district court erred by failing to conduct a de novo review before denying his Rule
60(b) motion. The record contradicts that argument. Relatedly, Hays asserts
that the record fails to demonstrate that the district court conducted a de novo
review when it denied his § 2255 motion in September 2000. He also asserts
that review of the merits of his ineffective assistance claim was deferred on
direct appeal and, thus, the district court erred in failing to hold an evidentiary
hearing on that claim. Hays’s claims are without merit. And, to the extent Hays
is challenging the underlying judgment denying his § 2255 motion, he is
precluded from doing so. See Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002).
Accordingly, Hays’s first argument fails.
Second, Hays argues that the District Court should have held an
evidentiary hearing in considering his Rule 60(b) motion. Hays has not cited any
authority for the proposition that he was entitled to an evidentiary hearing on
his Rule 60(b) motion. We likewise find none. Accordingly, Hays’s second
argument fails.
Third, Hays argues that the district court abused its discretion in denying
his Rule 60(b) motion . See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th
Cir. 1981). Having considered the record and relevant law, we find no abuse of
discretion. Accordingly, Hays’s third argument fails. See id.
AFFIRMED.

-- 2 of 2 --