Sanders v. Dretke ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 9, 2003
Charles R. Fulbruge III
Clerk
No. 03-20596
Conference Calendar
HENRY LEE SANDERS,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CV-544
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Henry Lee Sanders, Texas prisoner # 666939, seeks a
certificate of appealability to appeal the dismissal of his 28
U.S.C. § 2254 petition as successive. He intends to challenge
his conviction for possession of a controlled substance. His
notice of appeal, however, was untimely, and, therefore, we lack
*
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that this opinion should not be published and is not precedent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. 03-20596
-2-
jurisdiction to entertain the appeal. See United States v.
Merrifield, 764 F.2d 436, 437 (5th Cir. 1985).
Only one of Sanders’s postjudgment pleadings challenged the
merits of the district court’s judgment, and it was filed more
than ten days after entry of judgment; therefore, it was properly
construed by the district court as one seeking FED. R. CIV. P.
60(b) relief, and it failed to have a suspensive effect on the
30-day period prescribed for filing a notice of appeal. See FED.
R. APP. P. 4(a)(4)(A)(vi); Texas A&M Research Found. v. Magna
Transp. Inc., 338 F.3d 394, 400 (5th Cir. 2003). His notice of
appeal, filed beyond the 30-day appeal period, was therefore
ineffective to appeal the judgment of dismissal.
Moreover, his notice of appeal was ineffective to appeal the
denial of Rule 60(b) relief, given that it was filed before the
district court announced its decision in that regard. See FED.
R. APP. P. 4(a)(4)(B)(i)(premature notice is effective to appeal
order denying Rule 60 relief if filed after court enters judgment
but before disposition of motion). Sanders was therefore
required to file a new notice of appeal from the denial of his
Rule 60(b) motion to challenge its disposition. See Williams v.
Chater, 87 F.3d 702, 705 (5th Cir. 1996). He made no such
filing, and, therefore, we are without jurisdiction to entertain
any argument regarding the propriety of the district court’s Rule
60 ruling.
APPEAL DISMISSED.