United States v. Cooper , 231 F. App'x 369 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 19, 2007
Charles R. Fulbruge III
Clerk
No. 06-20151
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES OSCAR COOPER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:90-CR-403-1
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
James Oscar Cooper, federal prisoner # 55036-079, appeals
the denial of his FED. R. CRIM. P. 41(g) motion seeking the return
of property forfeited to the Government as a result of his
convictions for conspiracy to possess with intent to distribute
cocaine base and maintaining a place to use and distribute
cocaine base. He argues that the district court erred in
dismissing his Rule 41(g) motion as time-barred and abused its
discretion in dismissing his motion to construe his Rule 41(g)
motion as a FED. R. CIV. P. 60(b) motion.
*
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this opinion should not be published and is not precedent except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. 06-20151
-2-
The record establishes that Cooper knew no later than April
7, 1997, that his property had indeed been forfeited. See
Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993).
Consequently, his 2005 Rule 41(g) motion was untimely by roughly
two years. See Clymore v. United States, 217 F.3d 370, 373 (5th
Cir. 2000). The facts do not support application of the
equitable tolling doctrine because, by his own admission, Cooper
heard in 1995 that his property had been forfeited. He therefore
failed to exercise due diligence in preserving his legal rights.
See Perez v. United States, 167 F.3d 913, 917 (5th Cir. 1999).
In the district court, Cooper argued that his Rule 41(g)
motion should be liberally construed as a Rule 60(b)(3) motion
alleging fraud on the court. A Rule 60(b)(3) motion must be
brought “not more than one year after the judgment, order, or
proceeding was entered or taken.” FED. R. CIV. P. 60(b).
Consequently, any such motion would have been untimely because it
was filed more than one year after the default judgment was
entered on June 18, 1991. See id. To the extent that Cooper
argues that the district court should have liberally construed
his Rule 41(g) motion as one raised pursuant to other named civil
statutes, this argument was not raised below and is therefore
waived. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
AFFIRMED.