United States v. Avila

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2000
• Docket: 99-40920
• Status: Unpublished

Opinion

No. 99-40920 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40920 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE S. AVILA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-96-CV-49 -------------------- April 27, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jose S. Avila, federal prisoner # 5866-79, appeals the

denial of his 28 U.S.C. § 2255 motion. However, his notice of

appeal, filed approximately nine months after the district court

denied his § 2255 motion, is untimely as to that denial, and this

court therefore lacks jurisdiction to consider it. See Nelson v.

Foti, 707 F.2d 170, 171 (5th Cir. 1983); Fed. R. App. P.

4(a)(1)(B).

The notice of appeal is timely as to the district court’s

denial of Avila’s Fed. R. Civ. P. 60(b) motion, however, and this

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40920 -2-

court therefore has jurisdiction to consider the merits of that

denial. See id. Avila renews the argument, raised in his Rule

60(b) motion, that the magistrate judge erred in failing to

submit a report, pursuant to Rule 8 of the Rules Governing

Section 2255 Proceedings, before the district court denied his

§ 2255 motion; he also contends that the district court’s

adoption in toto of the Respondent’s proposed factual findings

and legal conclusions was reversible error. Avila has not

demonstrated that the denial of his Rule 60(b) motion was an

abuse of discretion. See Travelers Ins. Co. v. Liljeberg

Enterprises, Inc., 38 F.3d 1404, 1408 (5th Cir. 1994); Government

Fin. Servs. One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d

767, 774 (5th Cir. 1995); see also Marine Shale Processors, Inc.

v. E.P.A., 81 F.3d 1371, 1386 (5th Cir. 1996); cf. Jones v.

United States, 972 F.2d 1340, 1992 WL 167967 (9th Cir. 1992).

Accordingly, the district court’s denial of his Rule 60(b) motion

is AFFIRMED.