United States v. Tran

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

___________________

No. 00-20901 Summary Calendar ___________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NHAN KHIEM TRAN, also known as Tony Tran, also known as Larry Tran,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-1686 USDC No. H-89-CR-135-2 -------------------- April 1, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Nhan Khiem Tran (“Tran”), federal prisoner # 48684-079,

appeals the district court’s denial of his motion filed pursuant

to Fed. R. Civ. P. 60(b). Tran argues that the district court

erred in determining that Dirks was authorized to sign his motion

filed pursuant to 28 U.S.C. § 2255 as Tran’s authorized agent

because Dirks does not qualify as Tran’s next friend. Even

assuming that the district court erred when it determined that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20901 - 2 -

Dirks was Tran’s agent,“[i]t is not enough that the granting of

[Rule 60(b) relief] might have been permissible, or even

warranted--denial must have been so unwarranted as to constitute

an abuse of discretion.” Seven Elves, Inc. v. Eskenazi, 635 F.2d

396, 402 (5th Cir. 1981). Tran did not demonstrate in his Rule

60(b) motion, nor does he show on appeal, that he was prejudiced

in any particular way by Dirks signing Tran’s name to the motion.

Thus, he fails to show that the district court’s denial of his

Rule 60(b) motion was an abuse of discretion.

Tran also argues that Judge Hughes should be recused from

his case. This court will not address this argument because the

COA was granted only on the issue discussed above. See Lackey v.

Johnson, 116 F.3d 149, 151-152 (5th Cir. 1997).

The motion to supplement the record is moot in light of the

opinion.

AFFIRMED.