Torres v. Booker ( 2000 )


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  •                  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    that this opinion should not be published and is not precedent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.