Anderson v. Dretke , 86 F. App'x 737 ( 2004 )


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  •                                                          United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                February 10, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-10694
    Summary Calendar
    DALE ANDERSON,
    Petitioner-Appellant,
    versus
    DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent-Appellee.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:02-CV-00157
    USDC No. 4:02-CV-00158
    USDC No. 4:02-CV-00159
    --------------------
    Before JOLLY, WIENER, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Dale Anderson, Texas prisoner # 909781, appeals the denial
    of his FED. R. CIV. P. 60(b) motion challenging the dismissal and
    denials of his three consolidated 28 U.S.C. § 2254 applications.
    The only issue before us is whether the district court abused its
    discretion in denying Anderson’s Rule 60(b) motion.       See Aucoin
    v. K-Mart Apparel Fashion Corp., 
    943 F.2d 6
    , 8 (5th Cir. 1991).
    *
    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    that this opinion should not be published and is not precedent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. 03-10694
    -2-
    The sole purpose of Anderson’s Rule 60(b) motion was to
    circumvent the jurisdictional problem caused by his failure to
    file a timely notice of appeal from the judgment denying habeas
    relief.   A Rule 60(b) motion, however, is not a substitute for a
    timely appeal.   Dunn v. Cockrell, 
    302 F.3d 491
    , 493 (5th Cir.
    2002), cert. denied, 
    537 U.S. 1181
    (2003).   Moreover, the delay
    in Anderson’s receipt of notice of the judgment denying habeas
    relief does not qualify as an “extraordinary circumstance” under
    Rule 60(b)(6).   Although the time to file a notice of appeal had
    expired when he received notice of the denial, Anderson failed to
    take advantage of other remedies that were still available, such
    as a motion for an extension of time or a motion to reopen the
    time to file an appeal.   See FED. R. APP. P. 4(a)(5) (motion for
    an extension of time); FED. R. APP. P. 4(a)(6) (motion to reopen
    time to file notice of appeal).
    AFFIRMED.
    

Document Info

Docket Number: 03-10694

Citation Numbers: 86 F. App'x 737

Judges: Dennis, Jolly, Per Curiam, Wiener

Filed Date: 2/10/2004

Precedential Status: Non-Precedential

Modified Date: 8/1/2023