United States v. Lugo-Vargas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50812
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUANA LUGO-VARGAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-98-CR-904-1-EP
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September 17, 2002
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Juana Lugo-Vargas (“Lugo”) appeals the district court’s
denial of her FED. R. CIV. P. 60(b) motion, which requested that
the district court void and re-enter its judgment denying her
postconviction motion filed pursuant to FED. R. CRIM. P. 33 and 28
U.S.C. § 2255 so that Lugo could file a timely appeal from that
judgment. Lugo asserts that her counsel did not receive notice
of the judgment until approximately nine months after its entry.
*
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that this opinion should not be published and is not precedent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. 01-50812
-2-
The district court also denied Lugo’s motion to reopen the time
to appeal the judgment pursuant to FED. R. APP. P. 4(a)(6), but
Lugo concedes on appeal that she is not entitled to relief under
that rule.
Lugo’s arguments are precluded by Wilson v. Atwood Group,
725 F.2d 255 (5th Cir. 1984) (en banc), wherein this court
refused to grant relief under FED. R. CIV. P. 60(b) to a party
that failed to receive notice of the entry of a judgment in time
to file an appeal. “[T]o be relieved from the effect of
judgment, a party must show more than mere reliance on the clerk
to give notice of a judgment.” Wilson, 725 F.2d at 258. “The
clear purpose of Wilson was to cease the practice of extending
the time for appeal by vacating and re-entering judgments in
order to accommodate a party that has not received actual notice
of the entry of judgment.” Latham v. Wells Fargo Bank, 987 F.2d
1199, 1204 (5th Cir. 1993) (quotation and citation omitted).
Wilson established a rule that failure to receive notice of the
entry of a judgment or order does not alone justify the granting
of relief under FED. R. CIV. P. 60(b) to extend the time for
appeal. See id. Accordingly, the district court did not abuse
its discretion in denying Lugo’s Rule 60(b) motion.
AFFIRMED.