UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20635
RAYMOND TORRES,
Petitioner-Appellant,
v.
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Respondent-Appellee,
Appeal from the decision of the United States District Court
for the Southern District of Texas
(H-88-CV-1960)
February 1, 1999
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges:
PER CURIAM:*
On March 16, 1977, a jury found Raymond Torres guilty of
murder and sentenced him to life imprisonment. His conviction was
affirmed by the Texas Court of Criminal Appeals. Following three
state habeas petitions, Torres filed a 28 U.S.C. § 2254 application
in federal district court. On May 22, 1991, a magistrate judge
issued a memorandum recommending that the petition be dismissed.
On July 1, 1991, the district court adopted the recommendation and
dismissed the action.
Nearly six years later, Torres filed a Fed. R. Civ. P.
*
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this opinion should not be published and is not precedent except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.
60(b) motion for relief from the final judgment.1 Torres argued
that the district court clerk’s office had failed to notify him
when the judgment was entered, even though he had, allegedly,
meticulously apprised the clerk of his changing addresses. The
district court denied Rule 60(b) relief. By filing a timely motion
for certificate of appealability, Torres perfected his appeal from
the district court’s decision. See Stevens v. Heard, 674 F.2d 320,
322 (5th Cir. 1982). The appellant requests that this court
reverse the district court and grant “leave to appeal from the
final judgment entered on July 1, 1991.” We affirm.
We review the district court’s decision not to grant
relief under Rule 60(b) for an abuse of discretion. See Browder v.
Director, 434 U.S. 257, 263 n.7, 98 S. Ct. 556, 560 n.7 (1978);
Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 470 (5th
Cir. 1998). While Torres also challenges the district court’s
denial of his habeas petition, this court will not review the
underlying merits of an action in an appeal from the denial of
relief under Rule 60(b). See id. (“A timely appeal from a ruling
on a Rule 60(b) motion may be taken under Fed. R. App. P. 4(a)(5),
although the court of appeals may review the ruling only for abuse
of discretion and although the appeal does not bring up the
1
In the district court, the appellant arguably cited only
Fed. R. Civ. P. 60(b)(1) in support of his request for relief. His
motion, filed outside the one year period of limitations for
pursuing relief based on excusable neglect, was untimely. See Fed.
R. Civ. P. 60(b). However, construing the pro se motion liberally,
this court will consider the pleading a request for general relief
under Rule 60(b). See Haines v. Kerner, 404 U.S. 519, 520-21, 92
S. Ct. 594, 595-96 (1974) (interpreting pro se litigant’s pleadings
liberally).
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underlying judgment for review.” (internal punctuation and citation
omitted)).
Finding no abuse of discretion, we affirm the district
court’s denial of relief under Rule 60(b). First, this circuit has
consistently refused to grant Rule 60(b) relief for the sole
purpose of allowing an appellant to perfect a timely appeal -- the
exact relief sought by Torres. See Lancaster v. Presley, 35 F.3d
229, 231 (5th Cir. 1994) (“[The] petition violates a fundamental
tenet of this Circuit’s construction of Rule 60(b), i.e., Rule
60(b) cannot be used to extend the time to appeal.”). Moreover,
even if the appellant’s allegations concerning his dealings with
the district court clerk’s office are accurate, the clerk’s failure
to notify a party of the entry of a final judgment, without more,2
does not entitle a party to Rule 60(b) relief from the strict
language of Fed. R. Civ. P. 77(d). See Latham v. Wells Fargo Bank,
N.A., 987 F.2d 1199, 1204-05 (5th Cir. 1993) (citing Wilson v.
Atwood Group, 725 F.2d 255 (5th Cir. 1984) (en banc)). As this
court noted in Latham, “Following Wilson, we have consistently
rejected the use of Rule 60(b) to provide relief for parties
2
In Tubbs v. Campbell, 731 F.2d 1214, 1215-16 (5th Cir.
1984), this court granted Rule 60(b)(6) relief when the clerk’s
office affirmatively mislead an appellant regarding the status of
his case. The petitioner has neither alleged such conduct nor
would the record support such a finding. Aside from making
intermittent requests for the docket number of his action and
providing various updates with respect to his addresses, the
petitioner in this case did nothing more than rely on the clerk to
give notice of the entry of judgment -- an insufficient showing to
warrant relief. See Latham, 987 F.2d at 1205. In fact, from
October 13, 1993, until February 5, 1997, the petitioner does not
allege that he made any inquiries regarding the status of his case.
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complaining of lack of notice.” Latham, 987 F.2d at 1205; see also
Lancaster, 35 F.3d at 231-32. Torres could have filed written
requests with the district court or the district court clerk’s
office in order to document his need for information regarding the
status of his case.
AFFIRMED.
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