Summary Calendar MICHAEL TOMMY UDOH v. NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional…

* 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should not be published and is not precedent except under the limited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. 05-10100
Summary Calendar
MICHAEL TOMMY UDOH,
Petitioner-Appellant,
v.
NATHANIEL QUARTERMAN,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:04-CV-542-Y
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
United States Court of Appeals
Fifth Circuit
F I L E D
October 17, 2007
Charles R. Fulbruge III
Clerk

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No. 05-10100
2
Michael Udoh, Texas prisoner # 835097, was convicted of sexual assault.
He requests a certificate of appealability (“COA”) to appeal the dismissal of his
28 U.S.C. § 2254 application as time-barred and to appeal the denial of his mo-
tion for reconsideration. Because the notice of appeal is untimely as to the un-
derlying judgment, this court does not have jurisdiction to review it. See Bowles
v. Russell, 127 S. Ct. 2360, 2366 (2007). The application for a COA from that
judgment is DENIED. Because Udoh’s notice of appeal is timely with respect to
the denial of his FED. R. CIV. P. 60(b) motion, this court has jurisdiction to con-
sider that ruling.
Because the rule 60(b) motion attacked alleged procedural defects in the
district court, rather than the merits of his habeas claims, he does not need a
COA to proceed on appeal. See Gonzalez v. Crosby, 545 U.S. 524, 530-33 (2005);
Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002). Accordingly, the application
for a COA as to the denial of that motion is DENIED as unnecessary.
In challenging the denial of the rule 60(b) motion, Udoh argues that the
district court erred in dismissing his § 2254 application as time-barred. He con-
tends that he obtained evidence of actual innocence more than a year after his
conviction, that the requirement that he first exhaust his state remedies pre-
vented him from filing his federal application earlier, and that he delayed filing
his application while attempting to obtain legal representation. Udoh has failed
to show that the district court abused its discretion in denying that motion. See
Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 997 (5th Cir. 2001).
Therefore, the denial of the Rule 60(b) motion is AFFIRMED.
Udoh’s motions to file a supplemental brief, to supplement the record on
appeal, and for appointment of counsel are DENIED. His motion to stay depor-
tation is DISMISSED.

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