Hoffman v. Conner

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 18, 2000
• Docket: 99-40146
• Status: Unpublished

Opinion

No. 99-40146 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40146 Conference Calendar

BERNIE LAZAR HOFFMAN,

Petitioner-Appellant,

versus

N. L. CONNER, Superintendent of FCI at Texarkana, Texas; UNITED STATES PAROLE COMMISSION, United States Parole Commission,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:97-CV-311 -------------------- February 17, 2000

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Bernie Lazar Hoffman appeals the district court's denial of

his petition for habeas corpus under 28 U.S.C. § 2241 and the

district court's denial of his motion for "reconsideration."

Because the notice of appeal was not filed within sixty days of

entry of the district court's judgment and Hoffman did not move

for an extension of time to appeal, this court is without

jurisdiction to review the district court's denial of the habeas

petition. See Fed. R. App. P. 4(a)(1)(B), (a)(5)(A). The appeal

from the denial of the petition for habeas corpus is DISMISSED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-40146 -2-

Hoffman's motion for reconsideration is construed as a Fed.

R. Civ. P. 60(b) motion, the denial of which we review for abuse

of discretion. Aucoin v. K-Mart Apparel Fashion Corp., 943 F.2d

6, 8 (5th Cir. 1991). The only issue raised in Hoffman's motion

concerned his claim that the district court that sentenced him

violated Fed. R. Crim. P. 32 by failing to append Hoffman's

objections to the presentence report and the court's factual

findings on the same to the presentence report. This claim

concerns a nonconstitutional sentencing issue that is not

cognizable in § 2241. See Ojo v. INS, 106 F.3d 680, 683 (5th

Cir. 1997). The district court did not abuse its discretion in

denying the Rule 60(b) motion.

AFFIRMED.