IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20648
Conference Calendar
BOBBY JAMES GANN,
Petitioner-Appellant,
versus
GARY L. JOHNSON,
Director, Texas Dep’t
of Criminal Justice,
Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-CV-80
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April 16, 1997
Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
We previously determined that Gann’s notice of appeal from
the order denying his 28 U.S.C. § 2254 petition was timely only
if Gann had filed a timely Fed. R. Civ. P. 59(e) motion, which
would have delayed the effective filing date of Gann’s notice of
appeal. See Fed. R. App. P. 4(a)(4)(C).
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-20648
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The court remanded the case to the district court to
determine whether a postjudment motion filed by Gann was
deposited in the prison mailing system within ten days of entry
of judgment, which would have rendered the motion a timely filed
Rule 59(e) motion. See Gann v. Johnson, No. 96-20648 (5th Cir.
Nov. 11, 1996); Fed. R. App. P. 4(c).
The district court determined that Gann’s motion was not
deposited in the prison mailing system within ten days of entry
of judgment based on the affidavit of the prison official who is
the custodian of the prison’s mail records. Gann concedes that
he did not deposit the postjudment motion for mailing within ten
days of the entry of judgment. Therefore, Gann’s postjudment
motion was not a Rule 59(e) motion which extended the time to
file an effective notice of appeal. Gann’s notice of appeal
filed on June 28, 1996, was not timely and, thus, this court
lacks jurisdiction to address this appeal.
Gann’s postjudgment motion must be construed as a Fed. R.
Civ. P. 60(b) motion. See Harcon Barge Co. v. D & G Boat Rentals
784 F.2d 665, 667 (5th Cir. 1986) (en banc). Gann has not
evinced an intent to appeal from the denial of the Rule 60(b)
motion. Gann has not filed a new or an amended notice of appeal
from the order denying the Rule 60(b) motion.
The appeal is DISMISSED for lack of jurisdiction.