Torres v. Booker

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 19, 2000
• Docket: 99-60900
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60900 Summary Calendar

MANUEL TORRES,

Petitioner-Appellant,

versus

WALTER BOOKER, Superintendent of Mississippi State Penitentiary; JAMES C. ANDERSON, Superintendent, Mississippi State Penitentiary; MIKE MOORE, Attorney General, State of Mississippi,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 4:98-CV-55-LN -------------------- July 19, 2000

Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Manuel Torres, Mississippi prisoner # 45139, seeks a

certificate of appealability (COA) to appeal the denial of his

application for a writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. We must examine the basis of our jurisdiction, on

our own motion, if necessary. Mosley v. Cozby, 813 F.2d 659, 660

(5th Cir. 1987).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-60900 -2-

A notice of appeal in a civil case is required to be filed

within 30 days of the date of entry of the judgment. Fed.

R. App. P. 4(a)(1)(A). The district court entered its final

judgment in this case on April 27, 1999. Torres did not file a

notice of appeal from this final judgment. On October 27, 1999,

Torres filed a Fed. R. Civ. P. 60(b) motion asking the district

court to reconsider and vacate its judgment, arguing that the

district court had not considered his objections. The district

court denied the motion in an order entered on October 29, 1999.

Torres then filed a second motion to reconsider, asking the court

to set aside its order and judgment of April 27 and to reconsider

its order denying his first Rule 60(b) motion. Torres argued for

the first time in this second motion that the district court had

erred in adopting the magistrate judge’s report and

recommendation because the State had violated a local rule by

failing to file a response to his objections or to give notice

that it would not respond. The district court denied this motion

in an order entered on November 23, 1999. Torres filed a notice

of appeal from this order on December 16, 1999.

Any postjudgment motion that challenges the underlying

judgment, requests relief other than correction of a purely

clerical error, and is served more than ten days after judgment

is entered, is treated as a motion under Fed. R. Civ. P. 60(b).

Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665,

667 (5th Cir. 1986). The second motion for reconsideration was

served on November 15, 1999, more than 10 days after entry of the No. 99-60900 -3-

district court’s order denying his first Rule 60(b) motion, and

so this second motion was also a Rule 60(b) motion.

A Rule 60(b) motion may not be used as a substitute for a

timely appeal. Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199,

1203 (5th Cir. 1993). Any Rule 60(b) motion raising

substantially similar grounds as urged, or could have been urged,

in an earlier motion is deemed successive, and any appeal based

on such a motion is not reviewable by this Court. Id. at 1204;

Charles L.M. v. Northeast Indep. Sch. Dist., 884 F.2d 869, 870

(5th Cir. 1989); Burnside v. Eastern Airlines, 519 F.2d 1127,

1128 (5th Cir. 1975). Torres did not timely appeal the district

court’s final judgment, and he did not file a timely notice of

appeal from the order denying his first Rule 60(b) motion. His

notice of appeal is timely only from the order denying his

second, successive Rule 60(b) motion, which order cannot support

an appeal. He cannot revive this lawsuit for appeal by filing a

second Rule 60(b) motion and appealing from the denial of that

motion. Latham, 987 F.2d at 1204.

Appellate jurisdiction has not been conferred on this court.

Because we are without jurisdiction, we do not consider Torres’

COA motion. IT IS ORDERED that this appeal is DISMISSED for lack

of appellate jurisdiction.