Seitz v. Cockrell ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10450
Summary Calendar
ROBERT JACOB SEITZ, JR.,
Plaintiff-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
(3:99-CV-2707-D)
--------------------
October 16, 2002
Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Robert Jacob Seitz, Jr., Texas prisoner #
621783, seeks a certificate of appealability (COA) to appeal the
district court’s judgment denying his 28 U.S.C. § 2254 petition.
We have previously determined, however, that we lacked jurisdiction
over that appeal because Seitz failed to file a timely notice of
appeal. See Seitz v. Cockrell, No. 01-11486 (5th Cir. Feb. 11,
2002) (unpublished). This case therefore presents only Seitz’s
*
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this opinion should not be published and is not precedent except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.
appeal from the denial of his FED. R. CIV. P. 60(b) motion and not
an appeal from the merits disposition of his habeas petition;
consequently, no COA is required. See Dunn v. Cockrell, __F.3d__,
No. 02-40366, 2002 WL 1888802, *1 (5th Cir. Aug. 15, 2002). The
only issue before us is whether the district court abused its
discretion in denying the Rule 60(b) motion. See Aucoin v. K-Mart
Apparel Fashion Corp., 943 F.2d 6, 8 (5th Cir. 1991).
The sole purpose for the filing of Seitz’s Rule 60(b) motion
was to circumvent the jurisdictional flaw caused by his failure
timely to file a notice of appeal from the judgment denying habeas
relief. A Rule 60(b) motion is not a substitute for a timely
appeal. Dunn, 2002 WL 1888802 at *1-2. Furthermore, Seitz’s
failure to receive notice of the judgment denying habeas relief
does not qualify as an “extraordinary circumstance” under Rule
60(b)(6), because a party must file a timely notice of appeal
whether or not he receives notice of the entry of an order. See
Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1201 (5th Cir.
1993).
AFFIRMED.
2